SARDAR AHMAD NAEEM, J. Through this order, I intend to decide above mentioned bail petitions filed by the petitioners seeking their post-arrest bail in case FIR No.15/2020 dated 29.12.2020, under sections 409, 420, 468, 471, P.P.C. read with section 5 (2) of the Prevention of Corruption Act, 1947., registered at Police Station A.C.E., Lodhran, During the investigation section 411, P.P.C. was also added.
2. Allegedly, the petitioners committed fraud by way of forgery-cheating. Allegations of criminal breach of trust and criminal misconduct were in addition to that.
3. Learned counsel for the petitioner Muhammad Wajid argued at some length and concluded his arguments with the submission that neither he was author of some document nor signatory and that the petitioner was not the beneficiary of any alleged transaction; that no recovery was effected from him during the investigation; that entrustment of property was also not borne out from record; that the offences do not fall under the prohibitory clause of section 497, Cr.P.C. except section 409, P.P.C. and that the petitioner is behind the bars since arrest and his trial has not witnessed any material progress, thus, may be released on bail.
4. Learned counsel for the petitioner Zain-ul-Haq contended that he was a private person and working as paid servant of co-accused including Dr. Iftikhar Ahmad Bhatti and Muhammad Ejaz and that the petitioner was not beneficiary of the embezzled amount in any manner.
5. Learned counsel for the petitioner, namely, Ejaz Hussain argued that he performed as Junior Clerk and neither approved any payment nor ordered payment of any amount, allegedly, withdrawn by himself or his co-accused; that the statements of the witnesses recorded under section 161, Cr.P.C. do not categorically suggest any nexus of the petitioner with the above crimes, thus, he may be enlarged on bail.
6. Learned counsel for Muhammad Ikram and Tahir Mahmood petitioners submitted that they were not nominated in the crime report and during the investigation interrogated by the Investigating Agency which failed to collect convincing incriminating material against them as they were not beneficiaries of any questioned document nor their involvement in this case was established from the available material.
7. Learned Deputy Prosecutor General opposed these petitions and contended that there was sufficient material available on record showing nexus of the petitioners with above crimes and the approach of the Court in cases of white-collar crimes/corruption should be dynamic, therefore, it was not a fit case for grant of bail.
8. Arguments heard. Record perused.
9. A review of the record demonstrates that Chief Executive Officer, DHA, Lodhran referred the matter regarding corruption and corrupt practices and embezzlement by the Medical Superintendent and other Officers/officials of T.H.Q. Hospital, Kehror Pakka, Lodhran. The competent authority ordered for preliminary enquiry under Rule 5 of the Punjab Anti-Corruption Establishment Rules 2014 and on the completion of enquiry the instant case was registered on 29.12.2020.
10. In this case, all accused except the private persons were performing their duties either in T.H.Q.
Hospital Kehror Pacca, Lodhran or in the concerned Accounts Office. They facilitated each other through their official/occupational acts.
11. The record revealed that petitioner Muhammad Wajid was officer of BPS-17 and was then performing as Purchase Officer. He was member of Tender and Evaluation Committee for the year 2018-2019 and was secondary contract person for the said period. The record divulged that contrary to formulary, he purchased local medicine by way of bogus billing process duly signed by him. The Investigating Agency collected different invoices signed by him during the investigation whereby the payments were made to different medical stores. The details are here under: i. Ali Traders (PKR 60,60,404/) ii. Pak Pharmacy (PKR 9,94,355/-) iii. Lodhran Enterprises (PKR 17,40,381/-) He also managed local purchase of medicine worth rupees five million from Dunyapur, Lodhran and Multan, whereas, according to SOP's the local purchase could only be made within the area of two kilometer and only meant for the indoor patient.
Whereas, the petitioner opted bulk purchase and local purchase for the outdoor patient.
12. Zain-ul-Haq, petitioner was a private person. He participated in the process of bidding on the asking of his co-accused Ejaz Hussain. He was a paid servant of Ejaz Hussain and his co-accused Dr. Iftikhar Ahmad Bhatti against the salary of Rs.15000/18000/-. He got recovered seven cheques and nine stamps of different medical stores/pharmacies as well as Rs.3,00,000/-. A Car Suzuki Mehran LEC-8671 was also purchased from the crime proceeds by his co-accused, namely, Ejaz Hussain in his name and offered to pay price of Suzuki Mehran LEC-8671 during the investigation then being used by his co-accused 'Ejaz Hussain. This fact find support from the statements of Maqbool Hussain, Constable/A.C.E. and Javaid, A.S.I./A.C.E. recorded under section 161, Cr.P.C.
13. Next comes the petitioner, namely, Ejaz Hussain. He was distantly related to co-accused Dr. Iftikhar Ahmad Bhatti, Medical Superintendent, Tehsil Headquarter Hospital, Lodhran. He jointly made investment along with said co-accused, namely, Dr. Iftikhar Ahmad Bhatti. A cash book for the year 2017-2018 was recovered from him duly signed by him and not by the Medical Superintendent. There was no page marking. No such certificate was recorded on the said cash book and the record also reflected certain payments made to the petitioner through cheques of Lodhran Enterprises, Pak Pharmacy and Ali Traders.
14. So far as, Muhammad Ikram and Tahir Mahmood, petitioners are concerned, they served as Assistant Accounts Officer and Deputy Accountant in the office of District Accounts Officer. There was sufficient evidence available on record regarding their criminal misconduct. The record suggested that 31 cheques amounting to Rs.15,77,062/- were handed over by them to the co- accused, namely, Iftikhar Ahmad Bhatti instead of vendors. Whereas, Rs.55,06,837/- were withdrawn through different cheques from the bank without any report of the petitioners regarding physical verification. During the investigation, Abdul Rehman, Branch Manager, National Bank of Pakistan, Kehror Paka got recorded his statement under section 161, Cr.P.C. suggesting criminal misconduct of the petitioners.
15. In our society, there is alarming increase in cases of corruption/ white collar crimes. It may be mentioned here, for the benefit and guidance of all concerned that in cases of white collar crime the victim comes to surface about the commission of crime after its accomplishment and primary instrument for the commission of crime is creation of false documents which usually comes to the surface after completion of task. Such offences are made possible by the use of some form of technical or inside knowledge, which may be an awareness of how to use the organizational routine to conceal offending or may involve the abuse of special expertise. This makes many offences complex and the extent. duration and details of offending are difficult to determine. The definition of white collar crime reads as under: "Crime committed by a person or group of persons by way of some sort of trickery, deception or breach of trust connected with their socially approved position and legitimate role in society in due course of their occupational and professional activity with which they are ordinarily associated."
Following are considered to be essential elements of white collar crimes: The breach of trust is by the offender and such trust may be expressed, implied. delegated, presumed or even undeclared trust expected of the position and role of the offender and the relationship that he has with the victims; Unlike other conventional street crimes and criminality of the offender is normally concealed and not known to the public or the victim. The perpetrator is often in a position to conceal his criminality and it is very difficult for the investigators to probe into whole of the spectrum of criminal activities of the offender and work out unfair gains that he has accumulated by way of his criminal posture: The offence is committed by the offender in course of his ordinary occupational/ professional activities and he does not consider himself to be a criminal: He often proposes to himself and to others such justifications for his wrongdoings that insinuate legitimacy and innocence of his doings.
The crime is committed by a person having social position and ultimate role in sub-cultural settings in which he is connected in ordinary course of his occupational engagements.
The offence committed is ordinarily non-violent although consequences may be violent; The wrongful act committed by perpetrator of white collar crimes essentially has some sort of undeserved gains by him. This gain may not essentially. be a pecuniary gain. However it is often some sort of gain that brings prosperity or pleasure for the perpetrator or to someone ostensibly related or connected with him in some way.
16. White collar crimes are not always planned and organized act of deception and fraud because it may be committed by a person where he draws an impulse from an easy and sudden opportunity. The literature and scholarly work on the subject has shown that concept of white- collar crime has now traveled beyond the spectrum of respectability and high social status and has entered into realm of occupational activity. Occupational crimes are illegal acts made possible through ones lawful employment or occupational engagements. It is the secretive violation of norms, laws and societal codes connected with occupational role of individuals. Fraud, deceit, exploitation and secrecy are the essential of such occupational deviance and the motive is Only to make money in ordinary course of occupational activity. Whereas, professional white collar crimes are crimes committed by those who are trained in specialized field of occupation to pursue a career as professional in that field. Professional involves an individual creatively more in mental rather than physical labour.
17. The phenomenon of corruption is also not new and its traces are found in code of Hammurabi promulgated by Babylonian King around 2250 BC. The word corruption is used every day and perhaps more frequently than the term white collar crime. Usually this word is used by laymen instead of white collar crimes and most of whom perhaps would not understand its real meaning.
No study has been carried out so far to clearly distinguish the two concepts. However, both these concepts overlap each other in most of orientations. Historically, corruption is as old as the hills.
The literature on the subject points out the presence of corruption in ancient society and ancient legal codes provide scholarly hints towards this conclusion.
18. Corruption is defined and described in many ways and the term corruption is a general household term having different meanings for different peoples. In legal context, the shortest, simplest and widest definition of corruption is the abuse of public office for private gains. Legal definition will vary from those applied by sociologist, economist and political scientist. It is difficult to define corruption in general terms and the focus has to be the specific conduct such as bribery, fraud, theft and even things offending public morality. White Collar crimes, on the other hand, is a generic term incorporating the concept of breach of trust and deception of fraud and deviation from legitimate occupational activity. Thus, in legal parlance, corruption may be taken with a restricted scope and connotation as category of white collar crime wherein every act of corruption may not be a white collar crime and every type of white collar crime may necessarily be an act of corruption. Both these terms may, therefore, be used interchangeably as these two concepts overlap within the scope of criminal activity involving fraud and deception or breach of trust.
19. Reverting to merits again the evidence collected by the Investigating Agency shows nexus of the petitioners with the above crime wherein the public exchequer has lost PKR 1,80,62,625/-. The Investigating Agency examined Touqeer Ahmad Touqeer (owner of medical hall), Asif Raza Proprietor of New Medical Hall, Mansoor Nabi, owner of Gousia Medical Store, Allah Bakhsh from Data Medical Store, Nizam-ud-Din of Hamza Medical Store, Muhammad Abbas of Abbas Medical Store, Shoaib Bukhari, Proprietor of Gousia Pharmacy and Muhammad Khalil-ur-Rehman proprietor of Ikram Medicine Company under section 161, Cr.P.C., which supported the version of the prosecution. It may also be mentioned that economic offences constituted a class apart and need to be visited with a different approach in the matter of bail. The bail in such like cases even can be denied in those cases, which do not fall under the prohibitory clause of section 497, Cr.P.C. as observed by the apex Court in case titled "Imtiaz Ahmad v. The State" (PLD 1997 SC 545). As mentioned above, moral element in such like crime is absent and it must not be forgotten that white collar crimes are of such nature which affect the whole society, even though they may not have any immediate victims. In Dr. Mubashar Hassan's case reported as PLD 2010 SC 265, the apex Court observed that in such like cases pragmatic approach should be adopted by the Courts at the investigation as well as bail stage and that no leniency should be shown to the people involved in such like cases because then it would be impossible to successfully investigate and help bring the culprit to book or check the ever increasing cancer of corruption.
20. The co-accused of the petitioners, namely, Dr. Iftikhar Ahmad Bhatti filed bail petition (Criminal Miscellaneous No.292-B of 2021) at Bahawalpur Bench of the Court and the said petition was withdrawn after arguments on 22.02.2021. A similarly placed co-accused, namely, Kashif Nawaz was also denied bail by the Court vide order dated 13.04.2021 passed in Criminal Miscellaneous No.1344-B of 2021. The petitioners except Zain-ul-Haq are public servants. Nothing was brought on the file by the learned counsel for the petitioners that their case was distinguishable from the co- accused earlier denied bail by this Court, thus, on the basis of rule of consistency the petitioners would also be treated alike.
At this juncture it may also be mentioned that Muhammad Wajid petitioner approached this Court thrice though his two bail petitions filed earlier were simply withdrawn.
21. The, Investigating Agency after collecting the evidence including officials/bank record and recording the statements of the witnesses concluded that the petitioners along with their co- accused and as result of their joint venture caused huge loss of Rs.1,80,62,625/- to the 'Public Exchequer.
22. At the stage of bail deep scrutiny of evidence is not permissible nor is the requirement of law.
However, at the same time the Court of law is not precluded from tentative assessment of the material collected during the investigation and the plea of defences, if any, and to form a tentative opinion as to whether the accused is prima facie connected with the commission of offence(s). In "Imtiaz v. Azam Khan and others" (2021 SCMR 111), it was held that at the stage of deciding bail, the Court needs not to enter upon a detailed appreciation and examination of the evidence; however, the question cannot be decided in vacuum and Court has to look at the material available. The involvement of the petitioners in this case was confirmed by the Investigating Agency and sufficient material was available on record showing strong nexus of the petitioners with the above crimes; thus, I am not inclined to exercise my discretion in their favour.
23. For the foregoing reasons, all the above mentioned petitions are hereby dismissed, being meritless.