JAHANZEB KHAN, J. Consequent upon refusal of concession of bail to the accused/petitioner namely Ghulam Murtaza son of Shaban Ali, by the learned Sessions Judge/Incharge Anti- Corruption Gilgit, vide order dated 22-02-2024 passed in B.A No.06/2024, the accused/petitioner has approached this Court by filing the petition in hand under sections 471/468/465/420/417/409/406 P.P.C. read with section 5(2) PCA 1947, for relief of post arrest bail in case FIR No.03/2024 registered at Police Station Anti-Corruption Gilgit.
2. Brief story of prosecution as elucidated in the FIR is that: "A tender for purchase of medical equipment and furniture for 30 Bedded Hospital at Nagar Khan was scheduled on 16-06-2022 and an amount to the tune of Rs. 19.8 million was allocated/specified for the said purpose. As per law/procedure the tender was to be published in PEPRA website. The accused/petitioner was assigned the responsibility to publish the said tender in PEPRA website but the accused/petitioner with mala fide and malevolent intentions didn't publish the tender in PEPRA website and prepared bogus/forged documents and used it as genuine. As a sequel to it, on complaint of the complainant (AD Anti-Corruption) the case FIR bearing No.03/2024 was registered against the accused/petitioner along with the co-accused."
3. Initially, the accused/petitioner filed a bail application bearing No.06/2024 under the section 497 Cr.P.C before the learned Sessions Judge/incharge Anti-Corruption Gilgit, which was dismissed by the learned Judge Anti-Corruption Gilgit, after hearing contentions of both the parties. Feeling aggrieved from the said order the accused/petitioner has preferred this petition seeking his post arrest bail.
4. Learned counsel for the petitioner! accused Mr. Amjad Hussain advocate argued that the accused/petitioner is innocent and the FIR has been lodged against the accused/petitioner malafidely to implicate him in the instant case as there is no independent and convincing evidence available on record to connect the petitioner/accused with the commission of offences mentioned in the FIR. Learned counsel for the accused/petitioner submitted that the present accused/petitioner has no connection with the alleged allegations, the accused/petitioner is a Lab Technician BS-12 and he was not responsible for the publication of tender in the PEPRA website. He submitted that as per PEPRA rules, the then DHO Nagar namely Mushtaq was responsible for publication of tender in the PEPRA website, and principle liability lies on the shoulders of the then DHO Mushtaq. Learned counsel submitted that the co-accused DHO Mushtaq and Muhammad Kazim were also nominated in the promptly lodged FIR but interestingly the DHO Mushtaq has been exonerated and pardoned because he is an influential person while the co-accused Muhammad Kazim has got the benefit of section 169 Cr.P.C in his favor. He further submitted that the principle liability lies on the then DHO Mushtaq and his ministerial staff for the purpose of publication of said tender in the PEPRA website but a Lab-Technician and a Radiographer has been malafidely nominated in the FIR just to implicated them in the instant case. He further submitted that rule of consistency applies in the instant case and the accused/petitioner is entitled for concession of bail.
He further submitted that all the alleged offences do not fall within the ambit of the prohibitory clause of section 497 Cr.P.C and challan of the case been submitted before the trial court and investigation of the case is completed and the petitioner/accused is no more required for further investigation, therefore, Keeping the accused/petitioner behind the bars would serve no fruitful purpose. Lastly, the learned counsel submitted that the petitioner/accused will never abuse or misuse the bail facility if this Honourable Court will release him on bail by accepting this petition.
With these submissions he prayed for acceptance of the instant petition.
5. Conversely, learned Special Prosecutor for the State controverted the arguments advanced by the learned counsel for the accused/petitioner and contended that the present accused/petitioner was assigned responsibility to publish the tender in PEPRA website, making PC-I(s) of the developments projects, in this regard statement of the present accused/petitioner has been recorded, wherein he admits the very fact, but the accused/petitioner has misused the authority given to him, consequent upon, he has prepared the bogus and forged documents just to benefit the blued-eyed ones. Learned Special Prosecutor submitted that as for as release/bail of the co- accused Muhammad Kazim is concerned, he was assigned the responsibility of the Store Keeper and he was supposed to issue/disburse the items from the store, therefore, he (Muhammad Kazim, co-accused) has been released under section 169 Cr.P.C. He further submitted that all the offences are non-bailable and offence under section 409 P.P.C. entails imprisonment for life or imprisonment for a period of 10 years and falls under the purview of prohibitory clause of section 497 Cr.P.C. He further submitted that the petitioner/accused is directly nominated in the promptly lodged FIR. Statement of the present accused/petitioner and the material available on record fully connects the accused/petitioner with the commission of alleged offences and prima facie the prosecution has sufficient evidence in support of its version. With these submissions, he prayed for dismissal of this bail petition to meet the ends of justice.
6. We considered the arguments advanced by the learned counsel for the parties with due care and perused the available record and deliberated.
7. Tentative assessm ent of the record transpires that the present accuse/petitioner, has been implicated in the alleged offences which prima facie not attracted against the present accused/petitioner. There is no denial of the fact that publication of the said tender in the PEPRA website, was the prime and principle liability/responsibility of the then DHO Mushtaq according to the rules, being sole custodian of the concerned department, but it seems, that the same liability has been malafidely/dishonestly shifted to a junior staff who was even not concerned/ministerial staff rather he was technical staff, which was against the law/rules and this dishonest act of the concerned authority creates serious doubts and dents in the case of the prosecution. When the learned Special Prosecutor was confronted with the particular question of responsibility of publication of tender in the PEPRA website, the Special prosecute admitted and stated at bar that the then DHO Mushtaq as actually accountable for the said tender publication. Admittedly and surprisingly one of the co-accused Muhammad Kazim who has been allegedly attributed and an identical role has been released by the police under section 169 Cr.P.C. Moreover, the then DHO Mushtaq has also been exonerated and given clean chit from the Investigation Officer of the instant case, which also attracts the universal rule, "Rule of Consistency" in favor of the present accused/petitioner. Undoubtedly, out of all the alleged offences under sections 417/420/465/471 P.P.C. are bailable offences, whereas offence under section 409 P.P.C. falls within the ambit of prohibitory clause of section 497 Cr.P.C, which prima facie does not attract in the instant case to the extent of the present accused/petitioner. The matter in hand requires further probe into the guilt of the accused/petitioner. In such like cases grant of bail is a rule and refusal is an exception.
In the above circumstances, we are failed to find any exceptional reason to refuse the concession of bail to the present accused/ petitioner. The accused/petitioner is behind the bars for last couple of months, waiting for commencement of the trial of the case. Investigation of the case is completed and when the learned Special Prosecutor was confronted that, whether the present accused/petitioner is required for further investigation purposes? The learned Special Prosecutor replied in negative. In the above circumstances, we are of the firm view that the case of the accused/petitioner squarely falls within the ambit of Section 497(2) Cr.P.C entitling the present accused/petitioner for concession of post arrest bail and the same is allowed.
8. Above are the reasons of our short order dated even, which reads as under: "For reasons to be recorded later on, in the detailed Judgment, this petition bearing No. 62/2024 dated 01-02-2024 under sections 471/468/465/420/417/409/406 P.P.C. read with section 5(2) PCA 1947 vide FIR No. 03/2024 registered at PS Anti-Corruption 4BHQ, is allowed. The accused/petitioner is directed to be released from judicial lock-up, if not required in any other case, subject to furnishing of bail bonds in the sum of Rs. 200,000/- (two lac) with two locals sureties each in the like amount to the satisfaction of the learned trial court."
9. The observations made hereinabove are tentative in nature, which shall not prejudice the trial of the case and the learned Trial Court is directed to decided the case strictly on merits in accordance with law. File.