The petitioner is accused of an offence under sections 467, 468, 409, 471, 420 and 409, P. P. C. Read with section 5(2) of 1947 of Prevention of Corruption Act registered with Police Station Anti- Corruption Establishment, Lahore vide F.I.R. No.45 of 1997 at the instance of Muhammad Ishaq. An inquiry was conducted by the Additional Director Anti-Corruption Establishment, Lahore and vide his letter, dated 27-5-1997 the above referred case was registered.
2. The prosecution case in brief is that in the year 1994-95 when the respondent Munawar Hussain Was posted as Executive Engineer, District Council, Lahore, and amount of Rs.7,77,000 was sanctioned for construction of drains in village Arain District Lahore. Muhammad Akram co- accused of the respondent was granted the contract. The work had to be supervised by the respondent. Subsequently, the respondent managed to get the amount of construction enhanced to Rs.25,54,000. Although it is argued that the respondent was not responsible and the contract had been granted by the District Council yet the fact remains that respondent was Principal Engineer of the District Council who allegedly manipulated to get the same enhanced. Out of that enhanced amount Rs.23,38,169 were drawn by the Contractor as the relevant bills were got approved by the respondent as well as his two subordinates i.e. S.D;O. And Sub-Engineer. The S.D.O.
And the Sub---Engineer both are absconders and have not surrendered themselves so for. During the inquiry it was found that the work done at the maximum consumed about Rs.16,00,000 the remaining amount was misappropriated by the respondent alongwith his co-accused. On completion of the investigation the challan was submitted in the Court of learned Senior Special Judge Anti---Corruption, Lahore on 17-6-1999.
3. The respondent got him bailed out in anticipation of his arrest which was dismissed on 16-7-1998 and he was taken into custody. However, on 31-8-1998 the respondent was admitted to bail by the learned Senior Special Judge, Anti-Corruption.
4. Muhammad Akram co-accused of the respondent had since been refused bail by the learned Special Judge, therefore, he moved this Court through Criminal Miscellaneous No.2054-B of 2000: The main argument advanced on his behalf was that following the rule of consistency he should be admitted to bail as Munawar Hussain respondent had been extended this concession. On examining the record it was noticed that it was a case misappropriation by police servants alongwith Muhammad Akram Contractor co-accused, therefore, amongst other section 409, P.P.C.
Had also been applied. This offence is covered by the prohibitory clause. The bail can be allowed to an accused person in an offence covered by the prohibitory clause only if there are reasonable grounds to believe that he has not committed that offence. Prima facie there appears to be sufficient evidence available against the respondent to connect him with the commission of the offence alleged against him. Apart from that conduct of the respondent as well as his co-accused did not entitle him to the concession of bail. He was, therefore, issued suo motu notice as to why the bail allowed to him should not be withdrawn and cancelled. It was also noticed that although the trial was pending in the Court for the last more than one year and the occurrence took place in the year 1994-95 yet no progress towards conclusion of the trial was permitted by the accused persons. Two of the co-accused i.e. S.D.O. And Sub-Engineer who were subordinates to the respondent and had committed the alleged crime in collaboration with the respondent were fugitive from law and have not surrendered so for. In response to the show cause notice, the respondent appeared on 10-5-2000 alongwith his counsel. He has been heard in detail.
Accordingly to the learned counsel for the respondent, he had been implicated out of inala fide and party faction as F. I. R. No. 165 of 1995 was registered at Police Station City Raiwind against Muhammad Akram Contractor co-accused under section 324 etc. And another F.I.R. No.185 of 1995 was registered at Police Station City Raiwind under sections 337F-(i), 337A(ii) etc. On behalf of Syed Zafar Abbas Shah, therefore, he has been' falsely implicated. It was further argued that on behalf of the respondent Rs.73,650 have been deposited, which according to the prosecution fell to his share out of the alleged embezzled amount. It was further added that the respondent was a Government Servant and there was no likelihood of his absconding away.
5. As against these submissions, the learned counsel for the State as well as for the complainant have argued with vehemence that it is not the first case wherein the respondent is required as an accused. There have been a number of criminal cases of similar nature registered against him.
With the help of the Investigating Officer, they have referred to four criminal cases which stood registered against the respondent for commission of similar offence. They are:------.
(i) Case F.I.R. No.24 of 1992, dated 7-10-1992-under sections 161, P.P.C. And 5(2) 47, P.C.A. P.S. A.C.E., Sargodha. Allegation is to have received Rs.10,000 from a contractor/complainant.
(ii) Case F.I.R. No.87 of 1992, dated 8-6-1992 under sections 409, P.P.C. And 5(2)47, P.C.A. P.S. A.C.E., Faisalabad. Allegation is that during the scheme of water supply accused with the connivance of co-accused caused loss to the Government ex-chequer upto the tune of Rs.5136.
(iii) Case F.I.R. No.86 of 1992, P.S. A.C.E., Faisalabad.
(iv) Case F.I.R. No.50 of 1997, under sections 409, P.P.C. And 5(2)47, P.C.A. P.S. A.C.E., Faisalabad.
6. I have heard the arguments and perused the record carefully. It is lamentable that no progress towards conclusion of the trial could be made and mainly the respondent and his co-accused are, responsible for delaying the trial. Although notice for his cancellation was pending in Court since May, 2000 and number of adjournments were granted but during this interval as well no head-way towards conclusion of the trial was allowed to be made. As already noted two of the co-accused of the respondent are absconding and the remaining two accused persons i.e Munawar Hussain XEN respondent and Muhammad Akram Contractor are facing trial. It appears that both of the accused by collaboration with each other do not let the trial proceed. The challan was submitted in Court on 17-6-t1999. The co-accused Muhammad Akram was arrested on 9-10-1999 and as already noted the respondent was arrested on 16-7-1998. On 28-6-2000 the case of the respondent was separated from the absconding co-accused. On 7-7-2004 the copies of statements under section 161, Cr.P.C. Were to be delivered but the same were not received. On next date i.e. 19-7-2000 copies were received and case was adjourned to 31-7-2000 but Muhammad Akram did not appear from jail. The case was adjourned to ,9-8-2000 when Muhammad Akram again did not appear from jail and case was adjourned to 1-9-2000. On 1-9-2000 Muhammad Akram expressed his lack of faith in the Presiding Officer i.e. Learned Senior Special Judge, accordingly the case was entrusted to Mr. Javed Iqbal Siddiqui, Special Judge Anti-Corruption, Lahore and was fixed for 9-9-2000. On 9-9- 2000 the respondent submitted his medical certificate and obtained adjournment for 23-9-2000.
Muhammad Akram refused to sign the charge-sheet and a detailed order was passed by the learned trial Court. The next date is fixed as 17-10-2000. It is genuinely apprehended by the prosecution that the respondent and his co-accused would again create hurdles on 'one pretext or the other and will not let the trial proceed.
7. After taking into account the conduct of the respondent and his co---accused and also that a substantial amount has allegedly been misappropriated by the respondent, section 409, P.P.C.
Which is covered by the prohibitory clause has been applied and also the fact that the bail of the co-accused of the respondent has been refused, I am of the view that respondent Munawar Hussain is not entitled to this concession. The respondent and his co-accused have committed a planned crime. Unfortunately, corruption and misappropriation on the part of the responsible government functionaries has arisen to an alarming extent. The amount of mens rea or the guilt is far more in case of a planned crime than it is contained in a crime which is committed out of some impulsive action or sudden affair. The learned Special Judge Anti---Corruption, therefore, has not exercised his discretion judiciously and as such has extended an undeserved concession, especially when due to non cooperative attitude of the respondent and his co-accused no progress in the trial could be made. I, therefore, set aside the order, dated 31-8-1998 passed by learned Special, Judge, Anti-Corruption, Lahore and withdraw the bail, the same is as such cancelled. The respondent shall surrender himself forthwith.
8. Before parting with this order, I would like to observe that cancellation of bail will not debar the respondent from moving a fresh application for bail, if after recording the relevant evidence, some material entitling him to the concession of bail comes on the record. This suo motu notice is disposed of accordingly.