' A case under section 409/420/109, P.P.C. Read with section 5(2) Prevention of Corruption Act, 1947 was registered against the petitioner and others vide F.I.R. No,2 of 1997 dated 16-2-1997 lodged with Police Station F.I.A. (SIU), Islamabad.
2. It was contended that Mr.Asif Ali Zardari, ex-M.N.A./Federal Minister for Environment and Foreign Investment and spouse of ex-Prime. Minister of Pakistan, by abusing his official position as holder of public office dispatched eight big wooden packages without paying the prescribed duties/taxes and freight charges while in collusion with A.V.M. (Rtd.) Farooq Umar who was the then Managing Director, P.I.A. And Nazir Shah, the then Deputy Director Customs, Airport, Karachi. The aforesaid public servants intentionally caused loss to the public exchequer by waiving those duties and freight charges. The consignment of the wooden boxes was cleared by one Mr. Paul John Keating, 15-Grove Road, Luton Bedfordshire, London. The aforesaid clearing agent was illegally authorised by the present petitioner who was then working as High Commissioner of Pakistan in London Embassy. He issued authority letter dated 2-5-1996, whereby, he authorised the aforesaid Mr. Paul John to collect on his behalf the personal effects received from Pakistan on P.I.A. Flight No,PK-787 on Sunday, 28th April, 1996 under Airway Bill No,214-01-635012. Under the international law, the High Commissioner of Pakistan enjoyed privilege of exemption regarding the search of his personal effects and also was exempt from duty as allowed to the diplomats all over the world. However, the aforesaid effects comprising of eight big wooden packages were in fact not the personal effects of the petitioner but he allegedly misconducted by misusing his official position as a diplomat in order to obtain the pecuniary advantage for the aforesaid Federal Minister.
3. Learned counsel for the petitioner has submitted that the petitioner is entitled to bail because he acted in obedience of the command received by him from his superior authority in which he was asked to receive the consignment safely. Secondly, it was submitted that no mens rea could be attributed to the petitioner who was neither a privy to the crime nor he had acted to gain any undue advantage for himself or any other person. Thirdly, it was contended that the offence under section 5(2) of the Prevention of Corruption Act, 1947 is punishable up to maximum 7 years R.I. And as such does not fall within the prohibitory clause. In such cases, grant of bail is a rule and, its rejection would come under exception. Reliance was placed on PLD 1995 Supreme Court 34 and 1986 PCr.LJ 1098. It was further added that sections 409 and 420 read with section 109, P.P.C. Were added only with the mala fide intention as no misappropriation was even alleged in the F.I.R. On that ground too, the petitioner will be entitled to bail because the offence does not fall within the prohibitory clause. Reliance was placed on 1995 SCM R 170 in support of the above proposition.
Lastly, it was contended that the petitioner was entitled to bail as he was having bad health and was admitted in a hospital at Islamabad.
4. Learned State counsel opposed the bail application on the ground that the petitioner was performing his duty as an Ambassador which was the highest rank in the diplomatic corps responsible for the representation of the country abroad. He allegedly acted illegally and misused his diplomatic privilege in order to please his high command. As such, prime facie misconduct on his part was established and since there was likelihood of his abscondence by leaving the country after earning the bail, therefore, he was not entitled to the concession of bail even if he was involved in an offence falling within the ambit of non-prohibitory clause.
5. I have considered the foregoing submissions. Though deeper appreciation of the merits of the case is not possible nor it is desirable at this stage yet the evidence so far collected by the Investigating Agency shows that the petitioner was linked with offence of misconduct mentioned in the F.I.R. Though the offence aforesaid does not fall within the prohibitory clause yet the case of the petitioner would not be covered under the general rule that the bail should be granted as a matter of concession in such cases and that the refusal should be considered as an exception. The petitioner was admittedly an Ambassador and was enjoying diplomatic immunity which he allegedly violated in order to please the superior command in obedience of an illegal order. Had the consignment allowed to be moved in routine, the consigner should have been subjected to the normal law of the land of origin and also law of the land to which it was consigned. Due to diplomatic privilege, no such scrutiny could be made regarding such consignment which ordinarily should have been conducted under the law of land of the countries concerned. The petitioner cannot take advantage of the situation that he had acted in obedience to the order of his superior authority to arrange the reciept of the aforesaid consignment under the diplomatic cover and that it contained his personal effects. The law does not give any protection to the commission of any illegality under the superior command. It is now well-settled that compliance of illegal or incompetent direction/order could neither be justified on the plea of same having been issued from the superior authority nor the same could be defended on the ground that its noncompliance could have exposed concerned public servant to the risk of disciplinary action or other disadvantage. It was so held in PLD 1995 Supreme Court 530 that, 'tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration.'
It is, thus, obvious that the public servant should be courageous enough to resist any illegal superior command because it would be in the interest of good governance and also would inspire public confidence towards the administration. In the instant case, the petitioner did not resist the so-called illegal superior command but timidly yielded to it even at the cost of infringement of diplomatic privileges which are granted to diplomats of a sovereign country to show respect and honour to such country in the comity of nations. Hence, such type of delinquent official should not be shown any concession even at bail stage.
6. The question of mens rea is also clear in this case. The petitioner definitely knew that the boxes did not belong to him, but he had wantonly chosen to exercise his diplomatic privilege over them, even at the risk of his country's prestige and thereby prima facie. Committed misconduct as a public servant.
7. The medical ground is also not available to the petitioner because I am told that he is already receiving treatment in one of the best hospitals of the country at Islamabad. It is not shown that the petitioner is afflicted by such an ailment which cannot be treated in the said hospital.
8. In view of my above discussion, the petition being meritless is dismissed.