' This is a petition under section 498, Cr.P.C. By Ghulam Sadiq petitioner for pre-arrest bail in respect of a case instituted against him and few others under sections 409, 420, 468 and 471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 in the office of the Assistant Director, F.I.A.
Sub-Circle, Dera Ismail Khan.
2. The prosecution case in brief is that in pursuance of a secret information, the Assistant Director, F.I.A. Sub-Circle D.I. Khan, conducted a raid under the supervision of a local Magistrate on the Store in C.R.B.C. Project, WAPDA Colony Division, D.I. Khan. The perusal of the relevant record and physical checking of the Store revealed that apart from misappropriating three Air-Conditioners (National Maker) of Japanese Origin worth Rs,42,000 an Oxygen Cylender valuing Rs,1,000 the petitioner who is Junior Engineer and Hidayatullah, a Sub-Engineer, made substandard purchases of some medical equipment with the connivance of the supplier, Munir of Messrs Sarhad Construction Company, Peshawar and others. All of them were thus liable under sections 409, 420, 468 and 471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
3. The learned counsel for the petitioner contended:-
(1) That the learned Special Judge, Anti-Corruption (Central) at Peshawar had no jurisdiction both inherent as well as territorial to entertain the application for pre-arrest bail at Peshawar because the occurrence had allegedly taken place at D.I. Khan;
(2) That the learned Sessions Judge at D.I. Khan when approached had declined to grant pre- arrest bail to the petitioner and thus failed to exercise jurisdiction vested in him as Sessions Judge as also a Senior Special Judge;
(3) That the accused-petitioner had no direct concern with the Store in question and had only supervisory role in the matter which functions are also assigned to the Xen and the Superintending Engineer;
(4) That the entire proceedings conducted by the F.I.A. Are mala fide, dishonest and instituted due to the intrigues and conspiracies of the rival Officers of the department and lastly;
(5) That the entire record concerning the store and purchases of the alleged articles etc. Is in possession of the F.I.A. And the accused-petitioner would not be able to tamper with the same.
4. Mr. Muhammad Ibrahim Khan Alizai, the learned counsel appearing on behalf of the State, has opposed the plea of pre-arrest bail of the petitioner and urged that the petitioner in his supervisory capacity was vicariously liable for the misappropriation committed in the Store and the substandard purchases of the medical equipment.
5. The learned counsel for the petitioner could not advance any convincing argument to substantiate his plea that the learned Special Judge, Anti-Corruption (Central), at Peshawar, had no jurisdiction to entertain an application for anticipatory bail particularly when the petitioner had himself invoked his jurisdiction at the earlier stage. I am, therefore, clear in my mind that the learned Special Judge, Anti-Corruption (Central) at Peshawar is not debarred to either grant or refuse anticipatory bail in the cases falling under his jurisdiction.
6. There is, however, force in the contention of the petitioner's counsel that the learned Sessions Judge, D.I. Khan, has fallen into a grave error to refuse to entertain an application for pre-arrest bail in the case falling under the Bribery and Anti-Corruption Laws. I am clear in my mind that all the Sessions Judges notwithstanding the inherent jurisdiction in the matters of pre-arrest bails have been declared by the Federal Government to be the Special Judges, Senior Special Judges for their respective Sessions Divisions. In this context, I can do no better than reproduce two notifications issued under subsection (1) of section 3 and subsection (2) of section 4 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) as under:-
(1) No, F.Admn.15/8/58(I), dated the 25th November, 1958.-- In exercise of the power conferred respectively by subsection (1) of section 3 and subsection (1) of section 5 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) and in supersession of the Ministry of Law Notification No, F.Admn.39(2)/54-E, dated the 28th January, 1958 and No, F.Admn.15/158, dated the 4th March, 1958 the Central Government is pleased to appoint all Sessions Judges, Additional Sessions and Assistant Sessions Judges, in East and West Pakistan, who have for a period of not less than three years exercised whether continuously or not, the powers under the Code of Criminal Procedure, 1898, of a Sessions Judge, and Additional Sessions Judgcor an Assistant Sessions Judge, to be Ex Officio Special Judges within their respective Sessions Divisions for the trial of offences under the said Act.
(2) No, F.Admn.15/8/58(II), dated the 25th November, 1958.-- In exercise of the power conferred by subsection (2) of section 4 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) the Central Government is pleased to declare all the Sessions Judges in East Pakistan and West Pakistan to be the Senior Special Judges for their respective Sessions Divisions:
7. I am, therefore, of the view that the learned Sessions Judge, D.I. Khan has illegally failed to exercise the jurisdiction to entertain an application for pre-arrest bail for the offences specified in the Schedule to Pakistan Criminal Law Amendment Act, 1958. The learned counsel appearing on behalf of the State has also conceded to this proposition.
8. The learned counsel for the petitioner in support of his contentions on the merits of the case submitted that the accused-petitioner had not direct concern with the store in question and was, thus prima facie, not liable for the shortage of stores which was exclusively the responsibility of the store-keeper.
' The learned counsel submitted that the statement of Hidayatullah, Sub-Engineer and that of the petitioner made to the raiding Magistrate substantiates his contention that the articles of store in question were not in the direct entrustment of the petitioner. He further argued that the records having already been taken into possession by the Investigating Agency, there is hardly any possibility of the petitioner's tampering with the same even if he is enlarged on bail. In support of this proposition, he has placed reliance on (1) Muhammad Sarfraz v. The State 1976 SCMR 178 and
(2) Raza Muhammad Sial v. The State 1988 SCMR 1223. In the later case it was held by their Lordships of the Supreme Court that the evidence so far collected in that case by the prosecution required further inquiry in order to connect the petitioner with the crime. The petitioner in that case had specifically asserted that he had been falsely implicated in the case due to departmental intrigues and conspiracy so as to harass and insult him. In the instant case too, there has to be a further inquiry so as to connect the petitioner with the alleged misappropriation of the three air- conditioners and the substandard purchases of the store articles in question.
9. For the reasons stated above, I would confirm the interim bail allowed to the petitioner earlier. He shall, however, join the investigation if and when required by the Investigating Agency. This order shall be without prejudice of the merits.