' Applicant Shamrez Khan has been arrested in Crime No,8 of 1998 lodged by Director Food, Government of Balochistan with Anti-Corruption Establishment on 12-12-1997 under section 409/467/468/ 471/477-A/420/109, P.P.C. Read with section 5(2), Act II of 1947.
2. Prosecution case as narrated in the F.I.R. Is reproduced as below:-- "Subject: Non-delivery of wheat stock by contractor Mr. Shamrez Khan and allied firms i,e, Messrs Amiad & Shahid and Waseem and Javed.
The special audit party constituted by the Government of Baluchistan, Food, Fisheries and Coastal Development Department vide Order No,225.97/Misc./audit/2236-48, dated the 6th June, 1997 has pointed out outstanding of 394,930 bags weighing 39,550,396 Kgs. Wheat against the above named contractors for the period 1994-95 to 1996-97 (6/97). The detail of outstanding stock is Annexure 'A'. However, on scrutiny of the audit report by the Food Directorate, it has been observed that actual shortage works out to be 351,153 bags of wheat. A copy of the comments on the special audit report is enclosed as Annexure 'B'. A comparative statement showing shortage and adjustment thereof as pointed out by special audit part as well as by this Directorate on scrutiny of record is also enclosed as Annexure ' C'.
(2) This Directorate has further examined the record of dispatches from Karachi and various stations of Punjab during the period from 1st July, 1997 to September, 1997 and observed that the contractor and his allied firms have not delivered 156042 bags weighing 1,56,71,537 Kgs. Wheat (Annexure ' D'). The total shortages after adjustment of cost of wheat and stock delivered by the Contractor works out to be 2,30,489 bags valuing Rs,147,101,479. The Food Directorate is also examining the record of inter-Province transfer of stocks on P.R. To P.R. Basis for the period from 1st July, 1997 to 30th September, 1997, as the Contract of the Contractors for the year 1996-97 was extended for that period due to non-appointment of new contractors, the quantity of shortages of wheat can further be increased.
' It is requested that S.P. Anti-Corruption Establishment, Quetta may kindly be asked to register a case against the Contractor for recovery of amount of wheat and other actions to be initiated for default of terms and contract agreement under the relevant rules. Actions against Officers/officials as per list attached (Annexure 'E') may also be proceeded with."
3. After registration of the case, the applicant got protective bail from the High Court of Sindh Hyderabad Circuit on 2-6-1998 and applied for pre-arrest bail before this Court. Pre-arrest bail was declined to the applicant by this Court vide Order, dated 11-6-1998. On the same day the applicant was taken into custody by the Anti-Corruption Authorities. The applicant moved an application for grant of post-arrest bail before Special Judge, Anti-Corruption who rejected the same vide order, dated 26-6-1998; hence this application under section 497, Cr.P.C. For grant of post-arrest bail.
4. I have heard Mr. Muhammad Riaz Ahmad, Advocate for the applicant and Mr. Muhammad Noor Miskanzai, learned Assistant Advocate-General for the State.
5. Mr. Muhammad Riaz Ahmad, Advocate for the applicant contended as follows:--
(i) That no incriminating material has come on record. The investigation is complete and accused applicant is no more required for investigation; hence he is entitled to grant of bail.
(ii) That the stand of the prosecution is not clear regarding shortage of wheat.
(iii) That at the most the case against the applicant is that of non-delivery of wheat which is breach of contract and the applicant is ready to deliver the wheat found short.
(iv) That the case of the applicant is based on documentary evidence. The entire record is in possession of the Investigating Officer. Thus, there is no question of tampering with the prosecution evidence.
(v) That the other co-accused have been granted bail; thus on the principle of consistency the applicant is also entitled to grant of bail.
(vi) That the applicant is a chronic patient of diabetes and is also a heart patient; thus, he is entitled to bail on medical ground also.
6. Mr. Muhammad Noor Miskanzai, learned Assistant Advocate-General opposing the bail application contended:--
(i) That sufficient material has been collected during investigation of the case prima facie connecting the applicant with the commission of the offence.
(ii) That in any case shortage of wheat has not been disputed by the applicant and till today the wheat bags allegedly embezzled have not been accounted for by the applicant.
(iii) That the applicant has embezzled a huge amount and has caused loss to the Government exchequer, thus, he is not entitled to grant of bail.
(iv) That the case of the co-accused grant bail is distinguishable from that of the applicant.
7. It is alleged by the prosecution that during the period 1994-95 to 1996-97 about 2,30,489 bags of wheat were not delivered at various P.R. Centers causing loss of Rs,147,101,479 to Government exchequer. The alleged fraud was detected after the Special Audit Committee submitted its report and pointed out the above shortage of wheat. The contention of the learned counsel for the applicant that no case is made out against the applicant as no incriminating material has been collected against him, is without substance. It may be mentioned here that the F.I.R. Against the applicant was lodged after thorough checking and scrutiny of the P.R. Centers wherein it was pointed out that the Contractor had not delivered the wheat which had been lifted by him from various places of Punjab and Sindh and PASCOW God owns for delivery to various P.R. Centers in Baluchistan. It has come on record that after a lapse of 7/8 months the said wheat was not delivered by the applicant despite various demands and approaches. Admittedly the price of wheat lifted by the applicant from various go downs of Sindh and Punjab was paid in advance by the Government of Baluchistan which was misappropriated and embezzled by the applicant.
8. During the course of investigation, the statements of witnesses were recorded who have directly nominated the applicant in the commission of the offence. In this regard the statements of Mehfooz-ur-Rehman, Sheikh Nisar-ulHaque and Abdul Gaffer are very material. They have categorically stated that the wheat lifted by the applicant from Punjab and Sindh for delivery at various centers of Baluchistan was not delivered even after a lapse of 10 to 11 months and normally it takes 15 days from any corner of Pakistan for delivery of wheat at various P.R. Centres in Baluchistan. It has come on record that despite no delivery of the wheat, contract of the applicant was extended in June, 1997 for a period of further three months during this period the applicant further misappropriated a huge amount of wheat bags, price of which had already been paid by the Government of Baluchistan.
9. From the material collected by the prosecution, a prima facie case of misappropriation is made out against the applicant and there is reasonable ground to believe that the applicant has committed the alleged offence which is non-bailable does not entitle the applicant for grant of bail.
10. Reverting to the other contention of the learned counsel for the applicant that the entire record is in possession of the Investigation Officer and there is no question of tampering with the record. It may be added here that challah of the case has been submitted before the trial Court. As observed hereinabove a prima facie case is made out against the applicant and apparently C he has caused a loss of almost 140 million rupees to the Government exchequer.
11. As far as the contention regarding principle of consistency is concerned, it may be mentioned that the case of the co-accused released on bail is distinguishable from that of the applicant. The only allegation against the co-accused persons is that they received the wheat after a considerable delay from the applicant at various P.R. Centers. In this regard statement of P.W. Haji Khan is very relevant who stated that the applicant used to deliver wheat after a considerable delay or would deposit the amount of wheat in cash with the P.R. Centers and has further stated that after selling the wheat in black market on higher rates the applicant used to deposit the actual amount and would keep the excessive amount for himself. The witness has further stated that late delivery of wheat or in case of money, the same was deposited at the instructions of high officers who have so far not been arrested, though the Investigation Officer undertook to arrest the high officers of the Food Department with whose connivance the applicant misappropriated and embezzled the alleged amount.
12. Coming to the next contention of the learned counsel that the applicant is entitled to grant of bail on medical grounds also, it may be mentioned here that along with the application, the applicant has only filed certain documents and certificates of doctors to the effect that the applicant is a diabetic. Suffice it to observe that diabetes is not so dangerous that it cannot be cured/controlled in the jail wherein facilities are normally available for treatment of such ailments.
As far as heart disease is concerned, no medical certificate was produced to show that the applicant is at heart patient or the same cannot be looked after in the jail.
13. From the above discussion, prima facie a case is made out against the applicant wherein huge amount has been misappropriated causing loss to the exchequer. It may be added that corruption at this higher level has become so rampant in almost every institution of the country, and the wealth of the country has been ruthlessly plundered due to which country is at the verge of an economic collapse. It is high time to curb this evil in every nook of this society to save the country from further economic disaster; therefore, the applicant does not deserve any leniency. In this regard reliance is made to Sajjad Hussain v. The State PLD 1997 Kar. 165 wherein while dealing with a similar case it was observed as under:-- "While following the above principles it would also be relevant to consider that our nation is overwhelmed with avalanche of corruption under whose weight it is being relentlessly crushed.
Man, philosophers have said, is born innocent, it is the institutions of society that spoil him.
Whatever the truth in the observations, we seem to have institutionalized corruption. The bloody putrescence of the virus oozes out of every pore of the body politic, and every segment of national life, be it Government, politics, business, law, medicine, health or education. The landmark judgment of the Honorable Supreme Court reported as Aljehad Trust through Raeesul Mujahideen Habib-ulWahab-ul-Kheri and others v. The Federation of Pakistan and others PLD 1996 SC 324 (popularly known as the Judges' case) has raised hopes that the Courts will now play a significant role in eradicating corruption and other social evils. Therefore, it is humbly submitted that in such a situation a more pragmatic approach than has been the case so far on the part of the Courts is needed at the investigation as well as bail stages of corruption cases, because if the Courts show almost motherly leniency towards people accused of high corruption, then it would be impossible to successfully investigate and help bringing the culprits to book or to check the ever-increasing cancer of corruption."
14. The upshot of the above discussion, keeping in view the facts and circumstances of the case on the basis of tentative assessm ent of the evidence available on record, I am of the opinion that prima facie case of misappropriation is made out against the applicant. Therefore, I am not inclined to admit the applicant on bail. Consequently, this bail application is dismissed. However, observations made hereinabove will have no bearing on the merits of the case.