MALIK HAQ NAWAZ, J.---The petitioners filed writ petition No. 116/2016 under Article 71(2) of Self- Governance and Empowerment Order, 2009 for grant of pre-arrest bail in a reference No. 03/2016.
2. The brief facts of the case are that he petitioner has been arrayed as an accused in National Accountability Bureau (NAB) reference No.03/2016. In essence the above reference depicts mass level corruption committed by the officials of Education Department of Gilgit Baltistan in collusion with each other by making illegal appointments of various ineligible individuals and extracting a huge amount from the appointees. The gist of accusation leveled against the petitioner by the authorities of National Accountability Bureau (NAB) are as under:- Detail of illegal appointees:- The authorities of education department in connivance with each other by misusing their authority received bribe, illegal gratification and to favour others, committed following mega irregularities 1254x employees illegally:- i. Appointed over aged/under aged and un-qualified people. ii. Appointed without advertisement of posts, test interview and DRC/DPC. iii. Appointed and accommodated about 1214 individuals in excess of sanctioned posts. iv. The post of MT (BPS-09) was abolished for new appointments w.e.f 1st July, 2011, even then illegally new appointments on the said posts were made. v. The post of OT, PET and DM (BPS-14) was abolished for new appointments w.e.f 1st July, 2011, even then illegally new appointments on the said posts were made. vi. That there was ban on all new recruitments by the federal government during the financial year 2011-12 and 2013-14, even then thousands of employees were appointed in the subject department. vii.Appointed employees above the power of their competencies. viii.Low scale employees, without due procedure adjusted and appointed at higher scale. ix. In violation of recruitment policy, appointed female candidate against the male post and male candidate appointed/adjusted in Girls School against female posts. x. Most of the illegal appointees has been appointed on the pretext of their contingent/contract services, whereas, there is no rule or policy to appoint someone on the basis of his/her contract/contingent services.
3. The learned counsel for the petitioners submitted that the allegations against the petitioners are false and he has been involved in the case maliciously without any cogent and convincing evidence. Further that there is no evidence of any appointee to substantiate the allegations of corruption. Some of the co-accused of the reference in hand has been allowed post arrest bail by this Court, thus under the rule of consistency the petitioner is also entitled for the concession of bail.
The allegation of up-gradation of post of OT, DM and PET of 675 teachers in BPS-14 during banned period is not substantiated from the record as the ban was relaxed by the Chief Minister Secretariat vide letter No. CM-Sech-2(5)/2010 dated 30-09-2011, which has maliciously been overlooked by the NAB authorities. The challan of the case has been put in Court and in such circumstances, the recalling of bail will not serve any useful purpose. The learned counsel relied on 2007 PCr.LJ 105, 2002 YLR 2764, 2007 PCr.LJ 1087, 2008 YLR 1087, 2008 YLR 2229, 2012 YLR 2809, 2013 M LD 1561, 2014 SCM R 1628, 2016 PCr.LJ 535 and 2016 PCr.LJ 1498 in support of his contentions.
4. On the other hand the learned' special prosecutor opposed the petitioner with vehemence and submitted that the petitioner was involved in mega corruption and he with collusion of his other colleagues accumulated billioiY of rupees by making illegal appointments and ruined the future of the coming generation by making the appointments of ineligible person in Education Department.
The learned counsel relied on 2007 YLR 541 and 2007 PCr.LJ 1116.
5. Bail, whether it should be a post arrest bail or pre-arrest bail, had long been the subject of Judicial experimentation, Judicial labour and toil, undertaken by many erudite Judges not only ornamented this recipe of criminal law, but also made it yielding enough to cater for the changing dynamics both law and society, yet there exists leeway for further continuation to be made to make this provision all the more apt and in line with the intention of legislature.
6. A post arrest bail only requires, the matter to be of further inquiry, but in a pre-arrest bail, the duty of Judge becomes more tough.
7. It is. burning question that how to be a pre-arrest bail is to be' dealt with. It is a settled principal that a pre-arrest bail is an extraordinary relief given only in extraordinary circumstances. Law so for, is silent on this aspect, that what sort of circumstances could be termed as extraordinary circumstances. To my mind this extraordinary concession can only be given where:-
(i) The accused is not nominated in the FIR or his name surfaced afterwards, that too in a remote manner.
(ii) Where the narration of the FIR is such, that benefit of doubt cannot be withheld.
(iii) Where the recipe of the offences is of such a nature that post arrest enlargement of accused on bail is evident even if the interim relief of pre-arrest bail is denied.
(iv)Where the supplementing material/evidence collected by the investigating agency is defective, feeble or laconic to such an extent that a prima facie link of the offender and the offence/offences cannot be established.
(v) Where ulterior/sinister, perverse and sordid motives could be inferred from the available material.
(vi) Where the FIR is lodged in a flagrant violation of the mandate given by the general or by a special law.
(vii) Where the FIR depicts only a civil liability Court should be extra cautious in dealing with such an FIR, since there are many offences like that of deception, fraud, forgery, misappropriation and cheque dishonor for which there exits remedies in both civil/criminal law, the remedy available in criminal law must not be denied on the strength of availability of adequate compensation in civil law since the same would make the penal provision redundant and extinct.
(viii) Of course where the offence/offences is not of such nature affected public at large.
8. Owing to the agility, with which a pre-arrest bail is usually preferred in most of the cases pre- arrest bail is moved soon the FIR is lodged in such an eventuality there exists hardly any evidence on the record, even in those cases where pre-arrest bail is moved after a considerable length of time, a judge is supposed to carve out his opinion, within the limitation imposed by the concepts like tentative assessm ent and "deeper appreciation" although both of the terms have no-where been defined in law neither there exists any demarcation between what could be termed as "tentative assessm ent" and what excess could bring the same within the bounds of deeper appreciation, yet the theme which runs in the backdrop of shrinking of Courts from indulging into the deeper appreciation of facts is to be obviate the possibility of bringing in to lime light the lacunas of the prosecution case or the infinity of the defence, which may prejudice the case of either party but as experience suggests the Courts of law have somewhat adopted an inappropriate methodology to deal with the same. The situation becomes more precarious where the FIR even if the same is an incredible one, is lodged with promptness, with all the specification and role allocation and the Judge refuses to proble into the supplementing material on the score that the same would amount to deeper appreciation, this particular approach is devastative and tends to block the certain golden principles of law such as that benefit of doubt cannot be withheld even at The bail stage.
9. Although it has been held In 2015 SCMR 1763 that arrest is not statutory compulsion, provided the accused remains co-operative. With all my reverence for the wisdom of the ratio, have a telling effect on the outcome of a criminal case.
10.When the legislature in its wisdom has not provided the provision of even post arrest bail, allowing accused a pre-arrest bail that too in constitutional jurisdiction is something out of question, until and unless he brings himself within the exceptions as mentioned supra. A plain principle of interpretation of the statutes is to interpret the same in a manner, so that it must reflect on the intention of legislature. Whatever could be deduced by having a probe into the simple grammatical structure and the ordinary meaning that could be derived should be given the proper implementation. When it comes to the interpretation of penal status, that too when the same is couched in the negative terms, the same is to be construed strictly and the scale should be kept even without giving any side, whether prosecution or defence any sort of leverage.
11.Since the allegations against the petitioner is of ushering in an era of rampant infectious corruption in the education department by making hundreds of illegal appointments, which cannot be taken lightly/leniently by this Court because the task of the education department is not merely the selection of teachers but the construction of the nation. Making baleful appointments in the education department that too at the risk of jeopardize the educational future of Gilgit- Baltistan in particular and rest of the country in general. It is but natural that an accused extracting the relief of pre-arrest bail, sanguine of the fact that the same could be only recalled if there exists very strong circumstances cannot be expected to remain that co-operative, which otherwise could be expected of him, the extent and degree of co-operation surly undergoes variations, when the accused is in custody or in situation when he enjoys the concession of bail the psychological ease that one is not likely to be arrested. The satisfaction of not being in the jail environment and atmosphere and the comfort if not being subjected to successive interrogations or the bounties showered on the accused in case of pre-'arrest bail and the same if granted without taking an account of the attending circumstances cannot be lost right of.
12.The Special Prosecutor NAB, when asked by the Court, requested for' withdrawal of concession of bail before arrest, as the petitioner is not co-operating with the investigation and the reference is being delayed. Further that the petitioner remained absconder for a long time and the co-accused are rotting in jail since long.
13.It is high time that standards are set and system put in place to develop a culture of accountability at all level in order to cleanse over system and institutions from the evil of corruption, loot and plunder of national resources by a few irrespective of their status in the system.
14.In our considered opinion there is no merit in the writ petition, which is dismissed and the facility of pre-arrest bail granted to the petitioner is re-called.
15.Writ petition is disposed of accordingly.