DOST MUHAMMAD KHAN, J.--This single judgment shall also decide the connected petition (C.P.L.A.
No.3760/16) because both have arisen out of the same case and have been directed against the consolidated judgment of the Peshawar High Court, referred to above.
2. Facts relevant to the present petition are that the petitioner was posted for a short duration with three intervals as Chief Municipal Officer (CMO) of the Municipal Corporation, Peshawar while Sartaj, petitioner in the connected petition was attached to the same Corporation as a Junior Clerk.
Through a consolidated advertisement, published in the "Daily Newspapers" Urdu, Peshawar dated 6th July, 2015, leases of different properties including bus stands licenses fee, butchery lease and public lavatories, notice was issued to the public contractors eligible to participate in the auction proceedings. This included the trade licence fee and dangerous article licence fee. However, before publication of the public notice in the newspaper, the petitioner as a Chief Municipal Officer, acting under the instruction of the Chairman/Administrator issued an office order dated 18.6.2015 constituting a Committee consisting of nine officials of the Corporation attached to different wings, were included as members and the committee was to be chaired by the Administrator of the Corporation. It reads as under:- "Office Order:- To ensure transparent auction proceedings of the various contracts of Municipal Corporation, Peshawar, for the year 2015-16 the following auction committee is hereby constituted: -
1. Administrator Chairman
2. Chief Municipal OfficerMember
3. Deputy Director (Admin.)Member
4. Municipal Officer (Regulation)Member
5. Municipal Officer (I & S)Member
6. Municipal Officer (Finance)Member
7. The RDO (Audit) Member
9. A.M.O.
(Regulation)Member
10. Chairman and General SecretaryMember United Municipal Workers Union (CBA)"
At the foot of the said order, it was emphatically endorsed that the Chairman and the members are requested to ensure participation in the open auction proceedings, to be held on 22, 23, 24, 25 and 26 of June, 2015. Copy of this order was sent to all the members of the Committee with the request to attend the auction proceedings, to the Chief Editors "Daily Mashraq", "Daily Aaj" and "Daily Express" Peshawar with request to depute their reporters along with cameras for the coverage of auction proceedings while one Riaz Ahmad official photographer of the Corporation was directed to make arrangements of video camera to record video of the auction proceedings.
3. The auction proceedings for the two subjects, relevant to this case, took place on 23.7.2015 and one Muqeem Khilji offered the highest bid of Rs.40 million against collection of trade license and Rs.10 million for collection fee of licenses for dangerous and offensive articles but on the next day the said bidder withdrew bid thus, his call-deposit was forfeited as according to the advertisement the ultimate date for the auction had not expired by then, therefore, the auction proceedings for the two subjects were re-scheduled and on the given date, one Anwar Ali gave the highest bid of Rs.7.3 million for trade licence lease and Rs.53100000/- for dangerous and offensive trade license, which according to the record was 62 and 52 percent over and above of the preceding year highest bid. His bid was tentatively accepted and per rules/regulations the same was sent to the Provincial Government/ Local Council Board for vetting. The authority gave certain instructions i.e. to execute agreement with the successful bidders and to secure the interest of the Corporation.
After receiving back the summary duly vetted by the Provincial Government, the same was placed before the Council for approval under the Rules and Regulations and after due deliberation the Local Council approved the same accordingly. After approval was accorded by the Local Council, the Town Officer (Regulation) issued notice to the successful bidder namely Anwar Ali to deposit 5% security and 15% advance in favour of the Corporation however, it is alleged that the deposit of the above amount was delayed by Anwar Ali.
4. In the meanwhile, the petitioner, Saleem Khan was posted out and was attached to Workers'
Welfare Board, KPK, as Secretary. This is the entire role, which the petitioner, Saleem Khan has played in the alleged transaction. Briefly stated he was not the sole authority to approve the same but the responsibility and liability was to be shared by the Chairman and all the nine members equally at par with each other and thereafter, the final approval was to be accorded by the Local Council, the only competent authority under the law.
5. The ground of arrest does not disclose all these facts and the Reference now filed with the Ehtisab Court, KPK contains certain allegations that with the connivance and collaboration of Sartaj, petitioner in the connected petition, the present petitioner Saleem Khan through under- table bargain awarded the contract to Anwar Ali, who was close relative of Sartaj and in this way caused huge loss to the government exchequer.
6. Another aspect of the matter is that it was reported to the Corporation that Sartaj Khan, petitioner in the connected petition was collecting unauthorized fee from different persons running trade or business of dangerous and offensive articles through his armed gang. On receiving the complaint, the Town Officer (Regulation) registered a case vide FIR No.1575 on 4.8.2016 however, Sartaj was granted bail by the Area Magistrate and when the Regional NAB authorities laid hands on the case and Sartaj the petitioner in the connected petition apprehended his arrest, he filed a petition in the Peshawar High Court Peshawar and the authorities were restrained from his arrest.
7. Perhaps this was not enough for the authorities concerned or the Provincial Government, thus, the Deputy Commissioner detained Sartaj, petitioner under section 3 of the West Pakistan Maintenance of Public Order Ordinance, 1960 however; vide order dated 25.8.2016 passed in W.P.
No.3065-P/2016 the impugned order was set aside and serious stricture was passed against the authority for detaining petitioner Sartaj under the said law when no ground existed for pressing into service section 3 of the above law, thus he was released.
8. In the case registered against Sartaj petitioner vide FIR No.1575 for offence under sections 419, 420, P.P.C. dated 1.8.2016 he was granted bail by the Area Magistrate which was not challenged before the District and Sessions Judge, or the High Court and is still in the field however, despite of the fact that the order was operative in the field, the Assistant Director, Investigation Team-2 of the Ehtisab Commission, KPK assumed illegalities, corruption and corrupt practices of Sartaj petitioner arrested him for the offence under section 24 read with section 23 of the KPK Ehtisab Commission Act, 2014 on 28.1.2016 while Saleem, the present petitioner was arrested almost on similar grounds on 5.9.2016. They applied to the Peshawar High Court for grant of bail but this time it was declined by a Division Bench through the impugned judgment/order.
We have heard the learned ASCs for both the petitioners, learned Deputy Prosecutor General, Ehtisab Commission, KPK and have perused the record and the relevant provisions of law applicable.
9. To the Court query that whether any wrongful gain was made by the petitioners or the alleged illegal money collected or secured was traced out, the Deputy Prosecutor Ehtisab Commission candidly stated that there is no direct evidence to that effect, however, he vehemently contended that petitioner Sartaj was closely related to the subsequent bidder, Anwar Ali and thus manipulated everything in his favour and in this way caused loss to the tune of millions of rupees to the public exchequer and that he also collected forcibly and through armed gang unauthorizedly tax from the traders of ordinary trade and those to whom licenses were issued of dangerous and offensive articles issuing them fake and bogus receipts. Again when he was questioned that anyone from those traders from whom the money was collected forcibly was examined and was made witness, his answer was a big 'NO'.
He relied on the statement of Anwar Ali recorded under section 164, Cr.P.C. who has shown ignorance about participating in the auction and making bid for the contract and also alleged that it was Sartaj who obtained his identity card from him and through fake personation someone else participated in the bidding process.
10. At this stage, Mr. Tariq Mehmood, Sr. ASC argued that if the case is seen from the correct perspectives, it would reveal mutual rivalry between the first bidder and the subsequent bidders as well as their respective partners because Muqeem Khilji, the first bidder was the moving spirit behind the whole episode as he complained to the Ehtisab Commissioner of KPK making all these allegations.
11. During the course of hearing it was disclosed that the D.G. Ehtisah Commission was appointed on acting charge basis when the former D.G. resigned and the Acting D.G. is working in that capacity for the last one year on temporary basis, till the permanent one is selected by the Committee, constituted under the law for that purpose. We are shocked to see that such an institution, about which tall claims are made, is being run on ad-hocism and during one long years period, permanent D.G. could not be appointed. This inordinate and shocking delay in the appointment of permanent D.G. lead us to an inference that this is deliberately done because Acting D.G. cannot work independently with his free-will and strictly according to law as termination of his services are at the mercy of the appointing authority at any time. This glaring aspect has denuded the Ehtisab Commission of its genuine authority to work as a watch-dog to eliminate corruption when under the different provisions of the Act it has been authorized to lay hands on any officer of high rank including the Cabinet Minister and even the Chief Executive of the Province, if found involved in corruption, corrupt practices or misusing or abusing his/their official position therefore, to place the Ehtisab Commission on the proper tracks with full authority under the law conferred on it, it is essential to appoint a permanent D.G. without any further delay.
Therefore, we direct the concerned authority to appoint permanent D.G. positively within one month.
12. Adverting back to the facts of the case, we find that one of the petitioners namely Sartaj was vexed on account of multiple prosecution at different successive stages for the same offence, so much, so that once he was detained by the Deputy Commissioner under section 3, MPO, which clearly bespeaks about the foul play, because this detention order was set at naught by the Peshawar High Court in its writ jurisdiction with highly adverse remarks.
13. We are unable to subscribe to the view of the prosecution that Sartaj, a junior clerk could conveniently influence the 9 Member Apex Committee, consisting of senior most officers of the Corporation, headed by the Chairman, a grade-19 officer. It could not be pointed out from the record that the auction proceedings were conducted and held in violation of law and the rules on the subject or any illegality was committed during the said course. Again, it was just a recommendatory body and the first approval was to be given by the Provincial Government and the final approval was to be accorded by the Local Council, the ultimate authority under the law, thus, this aspect of the case gives rise to many begging questions, look askance but the prosecution has no plausible answer to give.
14. Mr. Tariq Mehmood, Sr. ASC pointed out that because the contract period was for one year and was to commence from a particular date, therefore to avoid future anomalies till the dual approval was accorded, the collection of tax/fee on the two subjects was entrusted to the employees of the department and a supervisor therefor was also appointed. The money collected during the interim period was deposited in the proper head of account so that the interest of the Corporation is fully secured and also of the contractor thus, he contended that at all stages the entire process would show fair play on the part of Saleem Khan petitioner as he made every effort to streamline the process in a just and transparent manner. The sense of official responsibility thus, shown by the petitioner, Saleem Khan was conveniently ignored and without any shred of evidence he was termed to be involved in the crime by receiving kick-backs. He further urged that neither the money-trail was traced out nor anything incriminating was recovered from him.
15. The prosecution entirely based its arguments on the statement of Anwar Ali contractor, recorded under section 164, Cr.P.C. where he has disowned his participation in the auction proceedings and getting the contract in his own name. The press reporters/photographers were already present as were invited by the petitioner, Saleem Khan, officially and one official photographer of the Corporation was also there to record video of the entire proceedings but all these have not been placed on record, which would determine finally as to whether Anwar Ali is telling a lie or not and whether he was physically present in the auction proceedings or not? Thus, no blind reliance can be placed on such a statement because Sartaj and Saleem Khan, petitioners both are employees of the Corporation and at the hands of the Corporation officers, Anwar Ali was also confronted with strict action for noncompliance with the directions, given to him by the petitioner, Saleem Khan.
16. In view of the above facts and circumstances, we are of the considered view that case of both the petitioners i.e. Saleem Khan and Sartaj call for further inquiry within the meaning of subsection
(2) of section 497, Cr.P.C. thus, they are entitled to the grant of bail as a matter of right.
Accordingly these petitions are converted into appeal and allowed. These are the detailed reasons for our short order of the even date, which is reproduced below: "For reasons to be recorded later, both petitions are allowed and converted into Appeals. Bail is granted to both the appellants in both appeals in the sum of Rs. 10,00,000/- (one million) each with one surety each in the like amount to the satisfaction of the learned trial Court."
Note: Needless to remark that the above observations are tentative in nature which should never influence the mind of the Trial Judge, who shall decide the case on the basis of evidence to be recorded.