' The petitioner has applied for post-arrest bail in case registered against him vide F.I.R. No,149 of 1994, dated 23-10-1994 under section 409/ 420/467/468/471/109, P.P.C. Read with section 5(2)/47, P.CA. At Police Station Anti-Corruption Establishment, Multan Region, Multan.
2. The facts which led to the registration of the case by Anti-Corruption Establishment Multan, are that Messrs Sardar Ghulam Hussain Khan Khizar and 2 other Councilors of Municipal Corporation, Multan, filed a complaint with the Director, Anti-Corruption Establishment, Government of the Punjab, Lahore. The complaint was initially conducted by Masud Ahmad Javaid, Assistant Director, Anti-Corruption Establishment, Multan, and thereafter entrusted to A.D.I./A.D.T., Anti-Corruption Establishment, Multan, who submitted final report on 21-9-1993 and held that the petitioner as Member of Provincial Assembly and the main trustee of the Constituency PP-161 is responsible for submitting the proposals of the development schemes and also responsible for the execution of development of work in true sense. Vide order, dated 18-3-1992 by the Government of the Punjab on the directive of the then Chief Minister, Punjab, Rs,2.5 million were sanctioned for the development of 12 schemes in the Constituency. The Enquiry Officers in the light of the authority and the procedure enshrined in Anti-Corruption Rules, 1985, concluded that the petitioner in connivance with others, swindled with Rs,2.5 million allocated to him against "Tameer-e-Witan Programmed in the Constituency. Accordingly the authority passed an order regarding the registration of case which culminated in F.I.R. No,149/94 dated 23-10-1994 under section 409/420/467/468/471/109, P.P.C. Read with section 5(2)/47, P.C.A. At Police Station Anti-Corruption Establishment, Multan Region, Multan.
3. The petitioner was arrested and after formal investigation sent to Judicial Lock-up. Where he is confined ever since. Having remained unsuccessful before Special Judge, Anti-Corruption, Multan, vide order, dated 2-1-1995 he approached this Court. Petitioner's earlier bail application bearing No, Criminal Miscellaneous No,25/B of 1995 was dismissed for want of prosecution on 13-2-1995. Hence this petition.
4. This Court also disposed of bail application bearing No, Criminal Miscellaneous No,1764/B of 1994 filed by Rao Muhammad Jamil, C.C.O., and one bail application was disposed of by my learned brother Malik Muhammad Qayyum, J., at Principal Seat, through Criminal Miscellaneous No,1809/B of 1994. Although this Court already dealt with the bail application of the co-accused namely Rao Muhammad Jamil of this F.I.R., even then, the principle enshrined in "Zubair Case" was not applicable in strict senso as the instant petition was entrusted to this Court by the Honorable Acting Chief Justice.
5. The learned counsel for the petitioner submits that case of his client Muhammad Boota falls within the ambit of section 497(2), Cr.P.C. On the ground that his client is presently Member of National Assembly returned from the ticket of Pakistan Muslim League (Nawaz Group); that he was Member of Provincial Assembly prior to this regime and as such in order to pressurize him, he had been involved in the instant case maliciously and for ulterior consideration. Reliance is placed on 1995 SCM R 170, 1994 PCr.LJ 993, 1988 SCM R 1223. He further submits that the case of his client is at par with those of his co-accused rather on better footing and as such, the Rule of Consistency is applicable and he is entitled to the concession of bail. Reliance is placed on 1979 SCM R 9, 1995 PCr.LJ 785 and on 1988 PCr.LJ 767. Learned counsel for the petitioner also submits that the challah in the case has not been submitted so far and there is no possibility of the commencement of trial in the near future and it is yet to be established as to whether he in fact has committed the offences. Alleged by the prosecution. He argued that it was a clear case of political vendetta against his client and the instant case could not have been registered because the offences for which his client was charged, were non-cognizable in nature and as such, the basic registration of the case was in sheer violation of criminal jurisprudence. Lastly, he has submitted that whole of the investigation is tainted with mala fides and is being commenced on the evidence i,e, Photostat copies of the documents, which are inadmissible in law.
6. The learned Additional Advocate-General, Punjab, vehemently opposed the above contentions and submitted that the offences for which the accused petitioners had been charged became cognizable through Pakistan Criminal Amendment Act, 1958, because these offences became the scheduled offences and the punishment had been separately provided for each offence tribal by a Court of special jurisdiction. Hence the provisions of general laws are not applicable rather the Anti-Corruption laws and the Pakistan Criminal Law Amendment, 1958 are the Special Statute have an overriding effect and even the hierarchy to investigate such like scheduled offences has distinctly been provided in view of the Anti-Corruption Rules, 1958; that the accused petitioner had taken full advantage of his representative capacity although he was a public servant; that the instant case was registered after thorough probe and enquiry ever since 1992 on the complaint of the local councilor, who also belonged to same party i,e, Pakistan Muslim League (Nawaz Group); that in the 'Tameer-e-Watan Programme" there is a procedure provided, which is mandatory in nature and the accused petitioner has not observed any of the legal formality, while issuing direction for the withdrawal of the swindled amount in the names of so-called contractors, who are still not traceable and available rather the accused petitioner has got issued the cheese in the names of the bogus persons. Further adds that despite objection raised by the authorities the accused petitioner converted 12 projects into 100 small ones, so that no authorized and registered qualified contractor could come forward; and lastly that there is plethora of evidence on the file, which prima facie connects the accused petitioner with the commission of serious cognizable offences, which fall within the prohibition contained in section 497(1), Cr.P.C. And also his case is distinguishable to that of co-accused and Rule of Consistency is not applicable. Reliance is placed on PLD 1972 Lah. 729, 1980 PCr.LJ 128(g), PLD 1978 Lah. 78, 1987 PCr.LJ 13 and on 1993 PCr.LJ 32.
7. I have heard the arguments advanced by the both sides and perused the record with their assistance. Admittedly the complaint was filed with the Director, Anti-Corruption Establishment, Punjab, Lahore, who entrusted the same to lower staff for inquiry and report into the allegations according to law.
' The law makers have given double check for launching a criminal prosecution against the culprits under the Special Statutes for illegal and corrupt practices. There is clear distinction between section 154, Cr.P.C. And the direction for registration of case regarding the commission of scheduled offences and also the illegal and corrupt practice. In the former cases, police authorities are statutorily bound to record the statement on a register, maintained for the commission of cognizable offences, while in the latter case the registration of the case is directed after conducting a thorough probe and enquiry into the allegations. This double check has been provided intentionally by the law makers only to have a check on the authority of the Anti-Corruption Establishment and specially to protect the innocent persons from malicious and bogus prosecution. Rather this mandatory procedure of prior inquiry and probe is in consonance with the cardinal principles of "audi alter am partem". Hence the question of false implication, political vengeance and ulterior consideration does not arise specially when enquiry and probe is pending ever since 1992. The accused petitioner and others were given full opportunity before they were held prima facie guilty of swindling of millions of rupees. From the perusal of the Scheme "Tameer- e-Watan Programme" under which the accused petitioner was entrusted the amount for development purposes, a set-up was provided to implement the proposals sent to the concerned authorities by the representative through proper channel. In the programmer, the office of the Assistant Director, Local Development and Rural Development and the District Advisory Development Board has been earmarked to implement the proposal of development within the limits of allocated funds and that too after observing all the legal formalities. Here in this case, initially the accused petitioner got the allocation for 12 different projects valuing Rs,2.5 million and when he came to know the actual position that these projects had to be published in the National Newspapers for attracting the attention of qualified registered contractors, therefore, he for reasons borne out from record introduced the so-called projects of valuing Rs,25,000 each.
Contracts for such amounts are usually carried either on work charge basis or allocating the same to the persons of their own choice. The accused petitioner in this case did not allocate the small projects to the qualified persons, but he intentionally got issued the cheques in the names of 2 persons whose whereabouts were not traceable, despite efforts made for their location. These facts coupled with the certificates given and endorsed by the accused petitioner by itself speak volume of the criminal intent on his behalf and the voluminous evidence available on the file of the prosecution, prima facie connects the accused petitioner with the commission of cognizable offences such as misappropriation of huge public exchequer, misuse of lawful authority; because Rs,2.5 million was entrusted to him, being Member Provincial Assembly, Punjab (as M.PA. Grant) by the Provincial Government, held him liable to be a dishonest, profligate and untrustworthy person.
The principle of consistency is not at all applicable simply on the ground that none of his co- accused is beneficiary in swindling the amount rather they abetted the crime only under the threat of their service and also to appease their superiors. The petitioner being principal accused gave them the following undertaking:- {{URDU TEXT}} ' to get it sanctioned after completion of projects. Moreover, accused petitioner failed to point out the projects, where the grant of 2.5 million was utilized during his physical remand. The case of the petitioner is quite distinguishable to those, who have been granted bail earlier.
8. The case is still under investigation, enquiry and probe with Anti-Corruption Establishment, as such, for bringing the instant case to the touchstone of further enquiry the well-settled principles have to be looked into i,e, the bail in cognizable offences can be allowed when there are sufficient grounds for further enquiry into the guilt of the accused and only on the condition, when the Police Officer or the Court at any stage of investigation, enquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a noncogni7able offence. Without this finding bail cannot be allowed under subsection
(2) of section 497, Cr.P.C. On the mere ground that there are sufficient grounds of further enquiry.
Following, the dictum laid down by the Honorable Supreme Court of Pakistan in Arbab Ali v. Khakis and others 1985 SCM R 195 and also in Ibrahim v. Hayat Gul and others 1985 SCM R 382 the learned counsel for the petitioner has failed to bring his case within the ambit of further enquiry for the reason that till date the accused petitioner is prima facie guilty of the offences wherein the sentence is provided either 10 years or more and the police has not declared him innocent during enquiry or investigation. And even this Court is not convinced at this stage to hold the accused petitioner as absolutely innocent; hence the contention raised by the learned counsel for the petitioner for the attraction of further enquiry is repelled. The contention of the learned counsel for the petitioner that whole of the investigation and enquiry is made on Photostat copies and that the original documents are not available to the prosecution, is also refuted on the ground that the P.W.
Namely Khadim Hussain, Superintending Engineering Branch, Municipal Corporation, Multan, has made statement on 27-11-1994 that original documents/files are available in the Branch and will be readily produced as and when required or summoned.
9. The accused petitioner has invoked the jurisdiction of this Court under the Criminal Procedure Code and while hearing this petition and when coming to know of prima facie misappropriation of a huge public amount by him and others it is my bounded duty to see that the Law and Constitution of Islamic Republic of Pakistan is implemented in letter and spirit. There is no cavil that the accused petitioner is a Member of National Assembly and previously he was Member Provincial Assembly of Punjab and on each occasion after return as Member of Provincial Assembly or for that matter Member of National Assembly, he took oath given in Schedule 3, under Articles 65 and 127 that he would perform his functions honestly to the best of his ability, faithfully in accordance of the Constitution of Islamic Republic of Pakistan, and the law and always in the interest of sovereignty, integrity, solidarity, wellbeing and prosperity of Pakistan and would strive to preserve the Islamic Ideology and also to protect and defend the Constitution. As is held supra, I wonder as to how the Provincial hierarchy or the Federal Government is silent in not considering the past conduct of the accused petitioner by way of referring his case under Article 63 to the Chief Election Commissioner Pakistan or launching the proceeding under President's (Post-Proclamation) Order 5 of 1977. The office of the Member Parliament is meant for the person who is of good character and is commonly known as one, who does not violate Islamic Injunctions, sagacious, righteous and non-profligate and honest and Amin. The Islam has given much more importance to the office of Amanat (the Trust), time and again in the Holy Qur'an, it is observed that such persons do not remain "Moment".
10. The petitioner, being Member of Law Making Body, has violated the law intentionally, does not deserve any leniency or concession. This being the position, I am not inclined to use my discretion in favor of the petitioner (accused). For the foregoing reasons the bail application of the petitioner is accordingly dismissed.