GHULAM YASIN KHAN vs The STATE and others

ORDER

' SHAH KHAWAR, J.---Ghulam Yasin Khan, petitioner has sought pre-arrest bail in case FIR No,15/14, dated 26-3-2014, offences under sections 420, 467, 471, 468, 109, 409, P.P.C. And Section 5(2)47 of the PCA, registered at Police Station, ACE, Muzaffargarh, District Muzaffargarh.

2. Briefly, the allegations levelled against the petitioner in the FIR are that one Sardar Korey Khan Jatoi was a big landlord and notable personality in District Muzaffargarh. By way of will he gifted/ alienated his landed property measuring 94000 Kanals in the name of Allah for the people of locality. Possession of the said land was under the control of District Council, Muzaffargarh since 1960 and the said land was mutated in favour of District Council, Muzaffargarh. After devolution, the same was taken over by the District Government, Muzaffargarh. On 12-10-2013 as per policy of defunct District Council, the District Government issued tender for the auction of lots Nos.189/1 and 189/2 situated at Mauza Ram Pur-III, Tehsil Jatoi District Muzaffargarh. One Khuda Bakhsh son of Allah Bakhsh filed W.P. No,12151 of 13 in the Lahore High Court, Multan. Bench Multan and got suspended the auction of the said land. The High Court disposed of the said writ petition directing the District Co-Ordination Officer, Muzaffargarh to treat it as representation of the petitioner and decide the same strictly in accordance with law after affording opportunity of hearing. In compliance with the above said order of the High Court, Khuda Bakhsh was called and heard by the D.C.O and perused the record, so produced by him. After detailed hearing and perusal of the record it came to light that earlier auction of lots Nos.189/1 and 189/2 was conducted on 27-9-2012 in an open auction. One Nazar Muhammad son of Ghulam Hussain offered bid of Rs,15,50,000 for lot No,189/1, who stood highest bidder for the said lot. Similarly, Khalil Ahmad son of Miran Khan offered highest bid of Rs,10,00,000 for lot No,189/2. However, Khuda Bakhsh remained unsuccessful in the open auction. The said Khuda Bakhsh connived with Yasin Khan Stenographer, the present petitioner, holding the charge of Superintendent Land of Sardar Korey Khan and Kashif Hussain, Senior Clerk and succeeded to get issued fraudulent allotment letter. No,142-SL/SKK dated 27-9- 2012 for allotment of land for the period from Kharif 2012 to Rabi 2016 vide lot No,189/2 at the rate of Rs,1,25,000 per year. Similarly, another allotment letter was issued by the above noted accused in connivance with each other. Kashif Hussain, Senior Clerk got affixed thumb impression of the said Khuda Bakhsh in dispatch register in a fraudlent manner. Yasin Khan, Stenographer/Superintendent Land (Petitioner) of Sardar Korey Khan and Kashif Hussain, Senior Clerk instead of issuing allotment letter in favour of successful bidder managed to prepare forged and fraudulent allotment letter in favour of Khuda Bakhsh for their ulterior motive and pecuniary advantage and caused huge loss to the Government exchequer to the tune of Rs,10 Million. Hence, this FIR.

3. During the course of arguments on 4-6-2014, a question was put to the I.O. Of the case that whether before proceeding with the matter a preliminary enquiry, which is provided under the law, was conducted or not? The answer was in the negative, that is why, this Court deemed it proper to get the documents, placed by the petitioner along with the bail petition, verified by the prosecution agency again. It was ordered that a copy of this order may also be transmitted to the Director General, Anti-Corruption Establishment Punjab, who shall also be apprised of .The proceedings pending before this Court in the matter of pre-arrest bail. It was directed that this exercise shall be completed within two weeks.

4. Today, the I.O. Along with the learned counsel for the District Government, Muzaffargarh appeared and candidly admitted that the receipt of amounts annexed by the petitioner with the writ petition were got verified and the District Accounts Officer, Muzaffargarh has confirmed that such payments were made by the petitioner. In the same manner a letter dated 5-4-2014 issued by the Deputy Director, Anti Corruption Establishment, Muzaffargarh to the Divisional Account Officer, Muzaffargarh has been placed, in which -the District Accounts Officer was required as to the receipt pertaining to deposit of premium in respect of 56 lots of Mauza Ram. Pur were genuine or bogus. The District Accounts Officer, Muzaffargarh vide its noting dated 7-5-2014 reported as under:-- "(1) Depositor's name (2) Head of Account (3) Date of deposit into Bank and (4) Amount should be provided for verification. Without above mentioned details this office is not in a position to verify the given statement.

' The above noting of the District Accounts Officer transpires that before lodging the FIR these aspects were not, got verified by the complainant.

5. This was the reason that during the course of arguments on the last date of hearing this Court put a clear question to the 1,0. Either some preliminary enquiry was conducted or not which admittedly was not conducted. Rule 6 of the Punjab. Arti Corruption Establishment Rules, 1985 contemplates that preliminary enquiries and investigations shall be initiated by the Establishment against public servants on complaints received from the Government, Heads of Departments or other reliable sources. In the same manner Section 7 of the Rules ibid provides that a Deputy Director or an officer of or above his rank shall initiate preliminary enquiries in order to ascertain the identity of the complainant or informer and genuineness of the complaint/information. Rule 8 of the Rules ibid provides criminal cases shall be registered by the Establishment under Prevention of Corruption Act, 1947 and under such sections of the Pakistan Penal Code, as have been set forth in the schedule to the Ordinance. Moreover, criminal cases shall be registered against public servants under the written orders of officers of Establishment as mentioned in the Schedule.

6. Learned counsel appearing on behalf of the District Government, Muzaffargarh and the I.O. Who reported that the order dated 4-6-2014 passed by this Court was fully considered by the Director General and other responsible officer of the Establishment and it has been principally decided to go for fresh investigation in the matter and there is likelihood that in near future the present proceedings shall be dropped and de novo investigation will be carried out strictly in line with the Anti Corruption Rules, 1985.

7. Above situation clearly depicts that the present FIR has, been lodged without adhering to the mandatory provisions of the Rules ibid, which provide preliminary enquiry. The logic behind the conducting of preliminary enquiry in the Rules is that the Anti-corruption Establishment on receipt of any complaint first determine the veracity of the complaint and then hold a preliminary enquiry after associating the alleged accused having involved in the commission of offence and after collecting incriminating material and verification of the record either to drop the investigation or to proceed further for the registration of case.

8. In the light of the aforementioned circumstances and the statement got recorded by the I.O. As well as the learned counsel for District Government, Muzaffargarh, the petitioner has become entitled for the grant of pre-arrest bail. Hence, the ad-interim pre-arrest bail already granted to the petitioner is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs,1,00,000 (Rupees One Lac only) with one surety in the like amount to the satisfaction of the learned trial Court.