1. ' Petitioner through this application has sought post-arrest bail in a case registered vide F.I.R. No,20 of 1999 on 2-2-1999 at Headquarter Anti-Corruption Establishment, Lahore under section 471/420/109/464/409, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947.
2. ' It is the case of the prosecution that respecting two cheques bearing Nos.2421054, dated 30-5- 1993 and 2421337, dated 19-6-1993 each valuing Rs,10 lacs an inquiry was conducted. It was revealed therein that the present petitioner Mian Manzoor Ahmad Wattoo in collusion with his co- accused misappropriated the aforesaid amount. The allegation against, the petitioner is that he being Chief Executive of the Province having all the powers was the trustee of the funds and property which he misused for his personal use. The allegations against his co-accused Mian Nasim Ahmad Wattoo and Mian Ahmad Shuja Wattoo were that taking undue advantage of the position commanded by the present petitioner they pressurized former Naib-Tehsildar, namely, Mian Rizwan Ahmad and Najum Hafeez to present forged and fabricated list by showing the distribution of embezzled amount as Eidi so as to camouflage the guilt.
3. ' Learned counsel has sought bail on the ground that the petitioner has been implicated in this belated F.I.R. In a mala fide manner. The alleged occurrence is stated to have been taken place in the year 1993 while the F.I.R. Was got recorded with a delay of 7 years in the year 1999 without holding any preliminary enquiry as envisaged by Punjab Anti-Corruption Establishment Rules, 1985.
4. ' It is argued that since there was no entrustment of the amount as such the provisions of section 409, P.P.C. Would not be attracted. Learned counsel has further stated that the amount was distributed among the needy as reflected from the list appended with this application. He has further pointed out that the account was got transferred from Baitulmal funds to the Chief Minister's discretionary quota by the late Chief Minister Ghulam Haider Wyne who had also been giving the financial help to the needy in this manner. It is also argued that the investigation is complete and most of the evidence is documentary in nature, as such, there is no question of either tempering of evidence or absconsion of the petitioner. He has also challenged the credibility of the persecution witnesses who kept mum for all these years.
5. ' Learned counsel has also sought bail on medical ground. The petitioner is suffering from very serious ailment of heart disease and backache. He had angio-plasty in America twice as such his further detention in jail would totally deteriorate his health. In support of his contentions learned counsel for the petitioner has placed reliance upon different precedents.
6. ' Khawaja Sultan Ahmed learned Special Persecutor has opposed the grant of bail. He has pointed out that the matter was thoroughly probed into and this case alongwith other cases against Mian Manzoor Ahmad Watoo involving misappropriation of Rs,55 lacs out of the Chief Minister's discretionary quota in league with his close relatives were registered after holding preliminary enquiry under rule 6/7 of the Punjab Anti-Corruption Establishment Rules, 1985. This amount according to him has been misappropriated and so as to camouflage the guilt forged and fabricated list has been prepared. The petitioner manoeuvred certificates, dated 3-6-1993 and 21- 6-1993 of the then A.C. Munir Mubarik to show that the alleged amount had been distributed.
7. However, learned Special Prosecutor has pointed out that the statements of Munir Mubarik, the then A.C., Muhammad Aslam Hayat, Muhammad Abbas, Zahooruddin Ghori and Munshi Muhammad Ramzan Patwari all recorded under section 161, Cr.P.0 have demonstrated that all these documents were fabricated when in fact the petitioner even did not visit the area on the said date.
8. ' I have given my anxious consideration to the entire facts of this case. I have noticed that there are allegations against Mian Manzoor Ahmad Wattoo that he in collusion with others misappropriated Rs,55 lacs specifically transferred to the Chief Minister's discretionary quota out of Baitulmal funds for its distribution among rain and flood affectees by virtue of resolution, dated 12-9-1992 of the Punjab Baitulmal Council. In this respect it is noticed that a directive was written to Amin of Baitulmal, Punjab, on 11-9-1992 for allocation of Rs,10 crores to flood and rain affectees by Chief Minister. Consequent to this directive as already stated in the 12th meeting of the Punjab Baitulmal Council held on 12-9-1992 a resolution was passed that an amount of Rs,10 crores be transferred to the Chief Minster's discretionary quota with a condition that it should only be utilized on the rehabilitation of the flood affectees. Subsection (vi) of section 5 of the Punjab Baitulmal Act, 1991 (Act VII of 1991) authorised the Punjab Baitulmal Council to pass such resolution.
9. ' The Chief Minister's Discretionary Grant Rules, 1988 provide for the utilization of-funds. Rule 2 of the Chief Minister's Discretionary Grant Rules, 1988 provides as under for the utilization of the same:-
(1) The discretionary grant placed at the disposal of the Chief Minister under section 21 of the Punjab Ministers (Salaries, Allowances and Privileges) Act, 1975 (XLI of 1975) may be utilized for any of the following purposes--
(i) monetary help to indigent widows, orphans, students, artists and men of letters of the Province;
(ii) monetary help for medical treatment of indigent persons of the Province;
(iii) rewards in recognition of meritorious services rendered;
(iv) rewards for exceptional academic, artisan and extra-curricular activities; and
(v) any other purposes which may be deemed appropriate by the Chief Minister.
(2) Each order of payment by the Chief Minister shall spell out the purpose for which it is sanctioned.
10. ' The encashment of cheques amount in . Rs,20 lacs has not been denied by the learned counsel for the petitioner who has justified the same by saying that the said amount was distributed as Eidi to the needy persons. In this regard he made reference to the list of recipients.
11. ' However, the evidence collected so far b the prosecution demonstrates otherwise. It has come in the statement of Muhammad Aslam Hayat, the then Deputy Secretary Development, Chief Minister's Secretariat that he got two cheques encashed and gave the amount of Re.20 lacs to the petitioner. He has also stated that he at the asking of the petitioner secured certificate from A.C., Depalpur regarding the alleged distribution of the money among the needy. He, however, has stated that those certificates were totally forged and fabricated and this factum has been substantiated by Mr. Munir Mubarik Khan, the then A.C., the author of the certificate in his statement recorded under section 161, Cr.P.C. Munshi Muhammad Ramzan Patwari in his statement has stated that in those days the Chief Minister never distributed the alleged money as the same was not recorded in any record. Apart from their statements there is material on record to implicate the petitioner in the embezzlement of this amount. It has come in evidence that the petitioner flagrantly violated the conditions for the distribution of funds secured from Baitulmal vide resolution, dated 12-9-1992 of the Baitulmal Council. He exercised this discretion in an arbitrary manner in spite of the fact that there was clear cut condition that the amount had only to be distributed among flood affectees.
12. ' Mr. G.M. Sikandar has stated in his statement recorded under section 161, Cr.P.C. That he pointed out to the Chief Minister that this amount could be spent to the flood affectees. However, in spite of all this he exercised his discretion in arbitrary manner. It is held in Mandiwala Entertainment (Pvt.)
13. Ltd. And two others v. Deputy Commissioner, Karachi South and another 1999 CLC 908 as under:-- "It is settled law that the discretion and powers vested with the State functionaries is not unfettered and is to be exercised judiciously and not arbitrarily or whimsically and should be based on sound principles of justice, equity, fairness and in accordance with the spirit of the provisions in which such powers are given."
14. ' Reference is also made to Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092.
15. ' The petitioner was the Chief Executive of the Province having all the powers. He played a pivotal role in the misappropriation of this fund. He being the Chief Executive was exercising dominion/control over the funds. He certainly was the trustee of the property and funds of the Province of Punjab. He was not there to doll away the same in this manner for his personal use.
16. ' Reference in this regard is glade to the verse 26 of Sura (Suad) of the Holy Qur'an which is as under:--{{URDU TEXT}} ' It is in evidence that amount in terms of lacs of rupees has been allegedly given to the individual persons while millions of people are not even getting proper health care and are craving for simple disprine.
17. ' There is another aspect of this case which cannot be lightly overlooked. The concept of accountability is very sparingly applied in this country and that too was never brought to its logical conclusion. This half-hearted approach has given tendency to grab public property and squandering of public funds. A learned Judge in a case reported as Pervez Iqbal and others v. The State 1995 PCr.LJ 430 has observed as under:-- "Looked the case from another angle judicial notices can be taken of the events that in the society tendency to grab public property and squandering of public funds has increased to a cancerous magnitude. It is the high time, therefore, that the grabbers of public property and squanderers of public funds are dealt with an iron hand. It is hence duty of all the organs of the State including the judiciary that while dealing with such-like cases particularly in exercise of discretionary jurisdiction the volume and extent of injury to the society both materially and to the moral fibre thereof, is also kept in view. A person who grabs the public property and squanders public funds commits a very heinous crime which an offence committed by a murderer who murders an individual, whereas a grabber and the squanderer kills the whole Society."
18. There is sufficient evidence on record that amount of Rs,55 lacs has been misappropriated and none of the persons whose names are mentioned in the lists received a single penny.'
19. ' As far as the medical ground is concerned Mian Manzoor Ahmad Wattoo remained Chief Minister after two Angio Plasty. His recent report, dated 19-4-1999 of the Punjab Institute of Cardiology whereby he was medically examined under the direction of this Court is as under:--
(1) No evidence for significant reversible myocardial ischemia.
(2) Adequate revasularization post PTCA.
(3) When compared with the previous scan, dated July 31, 1997, there is no significant change.
20. ' The recent report demonstrates that his condition is not such that he be released on medical ground. There are many persons in the society who are suffering from heart ailment, diabetes etc. But are leading normal life, though on medicines. The stress and strain as argued are not unknown in the present day life. Reference in this regard is made to Muhammad Arshad v. The State 1997 SCM R 1275.
21. ' The tentative assessm ent of the material placed by the prosecution brings me to the conclusion that there are reasonable grounds to believe that Mian Manzoor Ahmad Wattoo is guilty of an offence falling within the prohibitory clause because of his pivotal role in the embezzlement of Rs,55 lacs on fake and pseudo ventures.
22. ' Resultantly for what has been stated above post-arrest bail petition of Mian Manzoor Ahmad Watoo is dismissed.