Through the instant criminal miscellaneous petition the petitioners, Saira Rubab Nasir, Deputy Director (Law), Pakistan Medical and Dental Council ("PM&DC") and Sibghat Ullah, Deputy Director (Administration), PM&DC, seek the grant of pre-arrest bail in case FIR No.53, dated 21.12.2023 registered under Sections 109 and 161 of the Pakistan Penal Code, 1860 read with Section 5(2) of the Prevention of Corruption Act, 1947 at Police Station Anti-Corruption Circle, Federal Investigation Agency, Islamabad ("FIA").
2. The petitioners had been granted ad-interim pre arrest bail by the Court of the learned Judge Special Court (Central), Islamabad which was recalled vide order dated 15.02.2024. After the instant petition was filed, this Court, vide order dated 16.02.2024, granted ad-interim pre-arrest bail to the petitioners. Furthermore, the petitioners were directed to join the investigation.
3. Learned counsel for the petitioners submitted that the allegation against the petitioners in FIR No.53/2023 is that they extorted an amount of 25% of the Health Allowance arrears amounting to Rs.61 million from the employees of PM&DC; that the petitioners had nothing to do with the stoppage or the release of Health Allowance to the employees of PM&DC; that PM&DC, in its 119th meeting held on 22.12.2011, approved the grant of Health Allowance; that the said meeting was attended by 63 persons; that PM&DC, in its 200th meeting held on 17.07.2019, suspended the payment of Health Allowance due to an audit objection; that it was also decided to obtain an expert opinion from M/s A.F. Ferguson regarding the audit objection; that vide letter dated 25.07.2019, PM&DC requested the Ministry of National Health Services, Regulations and Coordination ("Ministry of NHSR&C") to review the audit objection regarding the payment of Health Allowance; that an opinion was sought from the Ministry of Law and Justice on whether the Executive Committee of PM&DC could grant pay and allowances to the employees of PM&DC in terms of Section 9 of the PM&DC Ordinance, 1962; that on 27.10.2022, the Ministry of Law and Justice opined that the Executive Committee of PM&DC by operation of Section 36B of the PM&DC (Amendment)
Act, 2012 enjoyed all powers vested in PM&DC and therefore the Executive Committee could exercise the authority of PM&DC as provided in Section 9(f) of the said Act; that in the 62nd meeting of the Sub-Committee of the Public Accounts Committee, the audit objection regarding the irregular payment of pay and allowances to the employees of PM&DC was settled thereafter, the payment of Health Allowance was restarted; that after the settlement of the audit objection, there was no meeting of the Council authorizing the release of the Health Allowance; that the arrears of the Health Allowance were paid through pay orders to the employees of PM&DC and the Health Allowance on monthly basis was paid in their salary; that the petitioners did not give any legal opinion on whether the Health Allowance should be released; that as per the report submitted under Section 173 Cr.P.C., out of 133 persons examined during the investigation, only two persons had made allegations against the petitioners; and that at no material stage had any complaint filed by PM&DC against the petitioners. Learned counsel for the petitioners prayed for the ad- interim bail granted to the petitioners to be confirmed.
4. On the other hand, the learned Deputy Attorney General tendered appearance along with Mr. Jahangir Khan Jadoon, learned counsel for PM&DC and submitted that the grant of pre-arrest bail is on different parameters from that of post-arrest bail; that there is no allegation of malafide made by the petitioners against the Federal Investigation Agency ("FIA"); that the matter had been referred to the FIA for investigation by the Ministry of NHSR&C after it received a complaint that a departmental inquiry was also conducted in the matter; that during the investigation, 112 witnesses recorded their statements that the petitioners collected an amount equivalent of 25% of the arrears received by the employees of PM&DC; that several witnesses retracted from their statements and refused to record statements under Section 161 Cr.P.C. showing involvement of the petitioners in the alleged offence; that the petitioners are influential persons and it can reasonably be apprehended that they would affect the collection of evidence during the investigation; and that in the presence of incriminating evidence and the statements of two witnesses recorded under Section 161 Cr.P.C., the petitioners are not entitled for grant of pre-arrest bail.
5. I have heard the contentions of the learned counsel for the petitioners and the learned Deputy Attorney-General as well as the learned counsel for PM&DC.
6. In the FIR, it is alleged that the petitioners extorted an amount of 25% of Health Allowance arrears amounting to approximately Rs.61 million from the employees of PM&DC in connivance with other officials and officers of PM&DC.
7. It evinces from the record that prior to the registration of the F.I.R. in question, petitioner No.1 was serving as Deputy Director (Legal), while petitioner No.2 was serving as Verification Officer in PM&DC. Vide letter dated 21.12.2023, the Deputy Director, F.I.A. informed the Registrar, PM&DC as to the registration of F.I.R. in question against the petitioners due to their involvement in corruption and corrupt practices and requested him to also initiate disciplinary proceedings against them.
Pursuant to such request, the President, PM&DC suspended the petitioners vide notification dated 22.12.2023.
8. It can be gathered from the interim report under Section 173 Cr.P.C. prepared by the investigation officer on 30.04.2024 that so far no documentary evidence has been brought on record which may show that the petitioners extorted the amount as alleged in the FIR. The petitioners are holding responsible positions in PM&DC and no criminal history has been attributed to them. The prosecution has not demonstrated a risk of absconsion.
9. The decision to pay Health Allowance to the employees of PM&DC was obviously not made by the petitioners but in the 119th meeting of PM&DC held on 22.11.2011 which was admittedly attended by 63 persons. PM&DC, in its 200th meeting held on 17.07.2019, stopped the Health Allowance due to an audit objection but after the audit objection was cleared / settled in the proceedings before the Public Accounts Committee, the payment of Health Allowance to the employees of PM&DC restarted. In the voluminous record collected by the investigation officer, there is no document to show that the petitioners (who had no role to play in taking policy decisions) were instrumental in the release of Health Allowance to the employees of PM&DC. The investigation officer could not come up with any plausible reason for arresting the petitioners.
10. The investigation officer submitted that out of the 133 employees of PM&DC examined by him, just one employee had made accusations against petitioner No.1 and one employee against petitioner No.2. Although the interim challan is said to have been submitted but the charge has not been framed as yet. The investigation officer has not had any complaint against the petitioners cooperating in the investigation. Nothing needs to be recovered from the petitioners.
11. In order to determine whether the petitioners are entitled to the grant/confirmation of pre-arrest bail, I have gone through the record, especially the statements of the employees of PM&DC which were recorded by the F.I.A., perusal whereof prima facie shows that some employees have alleged that the petitioners had taken the amount/money from them as bribe while some of them said that they paid the amount to the accused as contribution for employees related legal matters.
Moreover, few employees stated that the accused had taken money from them on the pretext of giving it to lawyers. Be that as it may, it is for the learned trial Court to determine whether the petitioners are actually involved in committing the alleged crime after recording the evidence as at the bail stage, only tentative assessment is to be made and deeper appreciation is not permissible.
12. On the basis of the record placed before me I am of the tentative view that there exist reasonable grounds to believe that prima facie the petitioners are not guilty and the case against them requires further inquiry.
13. The allegations in the complaint do not specify the time of the exact time of occurrence and it has casually been mentioned that the alleged offence has been committed in the year 2022-23.
The Ministry of NHS&R vide letter dated 11.12.2023 sought the registration of FIR and the question of delay in the registration of FIR cannot be ignored.
14. For the reasons aforementioned, the instant pre-arrest bail petition is allowed and as a result, the bail granting order dated 16.02.2024 is confirmed on the basis of bail bonds already tendered by the petitioners.