MUHAMMAD IQBAL Versus STATE

ORDER

This order will dispose of Criminal Miscellaneous 3476/B of 1998 (filed by Muhammad Iqbal, petitioner), Criminal Miscellaneous No.3513/B of 1998 (by Abdul Waheed Khan) and Criminal Miscellaneous No.3531/B of 1998 (by Ch. Nazir Ahmad) in which common questions of law and facts are involved.

2. On a report lodged by Gulzar Ahmad Mir, Excise and Taxation Officer, Sialkot on 27‑5‑1998, a case was registered against the petitioner and his co accused vide F.I.R. No.34, dated 1‑6‑1998 for offence under section 161 of the P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 at the Directorate of Anti‑Corruption Establishment, Lahore. Subsequently, the offences under sections 409 of the P.P.C. and 5‑C of the Prevention of Corruption Act were added on 2‑6‑1998. At the relevant time, the petitioner was serving as Excise and Taxation Officer (in Grade‑17) Headquarter Shadman, Lahore while Abdul Waheed Khan, co‑accused was the Director‑General Excise and Taxation, Lahore (in Grade ‑20) and Ch. Nazir Ahmad co‑accused, Director.

Excise and Taxation., Gujranwala (in Grade‑19,'3 The complainant alleged in the F.I.R. that he was serving as E.T.O. Sialkot since February, 1997 and prior to that he remained E.T.O., Lahore since October, 1994, that his tax recoveries at Lahore and Sialkot had been more than satisfactory; that Abdul Waheed Khan, Director‑General, Excise had received a sum of Rs.2,00,000 from him to decide an inquiry in his favour a few months ago; that he had borrowed money from his brother‑in‑law and mother‑in‑law to make payment to the Director‑General; that Ch. Nazir Ahmad Director, Excise and Taxation wrote a D.O. to the Director‑General, Excise to take action against him for remaining absent from duty at a meeting; that the Director‑General called him at Lahore and Muhammad Iqbal, petitioner told him that he must give Rs.1,00,000 to the Director‑General if he wished to remain in service; that he went back and after a few days arranged a sum of Rs.60,000 which was paid to the Director‑General; that he paid another sum of Rs.50,000 to Ch. Nazir Ahmad, Director, who promised not to write against him in future and that a sum of Rs.12,000 was received by the petitioner as well. At the end, he alleged that the Director‑General, Excise had many bank accounts worth lacs of rupees.

4. The complainant had submitted a written report before the Minister for Labour and Manpower, Punjab, who passed an order thereon for taking immediate necessary legal action. On the same date, i.e. 27‑5‑1998, the Chief Minister, Punjab allowed the written request made by the Director, Anti -Corruption Establishment Punjab, Lahore to initiate an inquiry and register a case against the accused persons. The said order is contained in the inquiry file. The Inquiry No.250 of 1998 was entrusted to Rashid Ahmad Malik, Inspector, Headquarters D.A.C.E. Punjab, Lahore who recorded the statements of Shahid Butt son of Mahmood Ahmad Butt, resident of Bhopal Wala Tehsil Daska and Muhammad Asif Mir son of Muhammad Anwar, resident of Dhilam Begon Tehsil Daska on 28‑5‑1998 and submitted final inquiry report on 30‑5‑1998. He noted in the report that he had twice called the accused persons but they did not appear before him. The inquiry file contains the statements of the petitioner and Ch. Nazir Ahmad co‑accused which were recorded on 2‑6‑1998. The same are signed by them. It also contains the statement of Abdul Waheed Khan but it does not bear his signature. On the basis of the inquiry report, the formal F.I.R, was registered on 1‑6‑1998.

5. On behalf of the petitioner and the co‑accused arguments were addressed by Malik Muhammad Nawaz, Advocate, Mr. Qadeer Ahmad Siddiqui, Advocate and Ch. Muhammad Ejaz, Advocate. They contended that a conspiracy was hatched at the behest of the complainant who was facing departmental inquiries, to implicate honest officers who were taking action against the complainant; that the complainant wielded considerable influence and approached the Minister for Labour and Manpower who readily helped him and managed to obtain the approval of the Chief Minister promptly for action against the petitioner and his co‑accused; that permission of the Chief Minister for inquiry and registration of the case was sought simultaneously which smacks of mala fides; that the Chief Minister does not figure in the hierarchy of competent authorities in the Anti‑Corruption Laws; that permission of the Chief Secretary is required for arresting the accused serving in Grade‑19 and that of the Governor in case of an accused serving in Grade‑20; that the permission granted by the Chief Minister was illegal; that the complainant has shady character and antecedents and was facing departmental inquiries; that at present he had been arrested in a case registered vide F.I.R. No.40 of 1998; that the complainant, the Minister for Labour and Manpower as well as the Director, Anti‑Corruption belong to Sialkot and have some community of interest which is apparent from the rapid speed in which the complaint was processed at the highest level, the so called inquiry was concluded within three days and the case registered against the petitioner and his co‑accused to humiliate them; that in the F.I.R., the date, time of occurrence and names of witnesses before whom bribe money was allegedly paid were not mentioned; that some inquiry was going on against the complainant who managed to obtain orders from the Secretary, Excise and Taxation in his favour whereupon the Director‑General, Excise had passed an order on 27‑9‑1997 dropping the inquiry; that the alleged payment of Rs.2,00,000 was made to the Director‑General Excise somewhere in September, 1997 but the report was lodged with a delay of more than 8 months without any satisfactory explanation; that no preliminary inquiry was conducted as required under section 3 of the Anti‑Corruption Establishment Ordinance, 1961 read with Rules 6 and 7 of the Punjab Anti‑Corruption Rules; that there is no material on the record to make out an offence under section 409 of the P.P.C. or section 5‑C of the Act; that the offence under section 161 of the P.P.C. is bailable and that offences under sections 5‑B and 5‑C of the Act do not fall within the prohibition of section 497 of the Cr.P.C.; that Abdul Waheed Khan is suffering from serious heart ailment since the year 1990 and at present is admitted in the Punjab Institute of Cardiology since 4‑6‑1998 and deserves bail under the 1st proviso to section 497 of the Cr.P.C.; that recoveries were made from the petitioners under duress; that Abdul Waheed Khan was forced to write a cheque of Rs.5,00,000 which was got encashed and the amount was secured by the Investigating Officer through recovery memo dated 2‑6‑1998; that the petitioner is no longer required for investigation of the case. In support of their contention, they rely on the following judgments:

(1) Sardar Khalid Umar v. The State 1989 MLD 4938.

(2) Sadiq Ali Shah v. Sardar Khalid Umar and others 1982 SCMR 975.

(3) Muhammad Riaz Munna v. The State 1993 SCMR 1321.

(4) Saleem Hussain v. State PLJ 1996 Cr.C. (Lahore) 916.

6. On the other hand, learned A.A.‑G. assisted by Muhammad Sharif Butt, Advocate for State opposed bail and urged that there were no mala fides on the part of higher authorities in registering the case; that prompt action was taken in the matter without caring for high positions of the accused persons as the Government wanted to weed out corruption; that the complainant had rightly submitted a complaint before the Minister for Labour and Manpower because he is the Chairman of District Anti‑Corruption Committee; that the offence under section 409 of the P.P.C. falls within the prohibition of section 497 of the Cr.P.C.; that a preliminary inquiry was made in accordance with the rules and the case was registered on the basis of final inquiry report; that the petitioners had themselves failed to join the inquiry proceedings; that powers of the Governor and Chief Secretary have been delegated to the Chief Minister who is the competent Authority for allowing the inquiry and registration of case against Government servants in Grades‑19 and 20; that Abdul Waheed Khan is getting proper treatment in the Punjab Institute of Cardiology and that recoveries made from the petitioner and his co‑accused corroborate the allegations made by the complainant.

7. The material on the record does not show that any movable or immovable property was entrusted to the petitioner or his co‑accused in their capacity as public servants qua which they had committed criminal breach of trust by dishonestly or fraudulently misappropriating the same or converting it to their own use. Despite that, the Investigating Officer arbitrarily added offences under section 409 of the P.P.C. and section 5‑C of the Prevention of Corruption Act in the F.I.R. which was originally registered under section 161 of the P.P.C. and section 5(2) of the Prevention of Corruption Act. Presumably this was done with the object of bringing the case within the ambit of the prohibitory clause of section 497 of the Cr.P.C. This act on the part of the Investigating Officer can be hardly considered to be bona fide. During the course of preliminary inquiry and investigation a new allegation, not originally contained in the F.I.R. was made against Abdul Waheed Khan co‑accused that he had collected Crores of rupees through registration of smuggled cars and by receiving illegal gratification. However, the bank accounts of the said accused, his wife and two sons show that the closing balance of Abdul Waheed Khan, co accused (as on 6‑6‑1998) was Rs.14,874 that of his wife Rs.85,806 and those of his two sons, Rs.7,937.50 each. Therefore, at present there was hardly any justification to add offences under section 409 of the P.P.C. and section 5‑C of the Prevention of Corruption Act. The complainant's allegation against the Director‑General Excise and Taxation of having amassed Crores of rupees by misusing his official position may require further probe and inquiry but at this stage there are no reasonable grounds for believing that he had committed the offence alleged against him.

8. The complainant has come forward with two versions; one embodied in the F.I.R. and the other advanced before the Inquiry Officer and the Investigating Officer. In the former, the names of witnesses in whose presence bribe money was allegedly paid to the petitioner and his co‑accused, are conspicuously absent. In the latter, names of Shahid Butt and Muhammad Asif Mir have been given in whose presence bribe money was paid to the three accused persons in the months of September, 1997 and May, 1998 at five different places, situated in Lahore and Gujranwala. Surprisingly, on each occasion the same witnesses were said to be present alongwith the complainant like his pets. The F.I.R. was made through a written application after due deliberations. The absence of names of the witnesses in whose presence illegal gratification was paid to the three accused persons creates an initial doubt about the veracity of the prosecution story. In the case of Muhammad Riaz Munna, bail was granted by the Supreme Court of Pakistan in a case in which F. I. R. was lodged after the delay of mere 20 days, the names of the alleged witnesses were not mentioned in the F.I.R. and police statements of witnesses were recorded after 21 days from the date of incident.

9. I need not dwell on the argument raised by the petitioner's learned counsel that the complainant, the Labour Minister and the Director, Anti- Corruption, all coming from Sialkot, conspired together to harass and humiliate the petitioner as it can be suitably attended to by the trial Court after recording evidence. The rapid speed at which action was taken by the highups in the present case, given the bona fides, may be considered to be laudable. If complaints against corruption made by the ordinary citizens are processed with the same promptitude then it can be reasonably hoped that the rising tide of corruption would be stemmed. However, I may observe that the interests of justice and object of law ought not to be sacrificed at the altar of speed alone The preliminary inquiry contemplated under Rule 7 of the Punjab Anti- Corruption Establishment Rules, 1985 is intended to ascertain the genuineness of the complaint or the information laid before the Anti‑Corruption Department regarding commission of an offence by a public servant. During the course of inquiry matter should be carefully probed into and the officers complained against be given a reasonable opportunity to explain their position. In the case of Saleem Hussain, it was held that the wisdom behind registration of Anti- Corruption cases regarding scheduled offences directly at the Establishment was that provision of inquiry before registration of the case had been provided to save reputation and honour of a Public Servant. In the present case, the complainant had alleged that the initial amount of Rs.2,00,000 paid by him to the Director‑General was borrowed by him from his brother‑in‑law and mother -in‑law. Neither the Inquiry Officer nor the Investigating Officer had recorded the statements of the complainant's brother‑in‑law and mother‑in‑law to ascertain the claim made by the complainant. Instead, the Inquiry Officer recorded the statements of Shahid Butt and Muhammad Asif Mir, whose names did not figure in the F.I.R. and hurriedly submitted the final report on 30‑5‑1998, whether it was done to please the Labour Minister and the Chief Minister of the Province is a question which stares the prosecution in its face. The Inquiry Officer has mentioned in his report that he had twice called the accused persons but they did not appear before him. There is now written notice on the record to substantiate the claim' made by the Inquiry Officer that he had called the accused persons twice. Had any intimation been sent to him they would have hastened to avail of the opportunity to join the inquiry proceedings to protect their honour and reputation. Two of the accused namely Muhammad Iqbal, petitioner and Nazeer Ahmad were interrogated by the Investigating Officer on 2‑6‑1998 after he had submitted the final report. After submission of the final report interrogation of the accused persons was not called for. I have also noticed that there are some additions in the statements of Shahid Butt and Muhammad Asif Mir, recorded during the course of inquiry. At the end of the, statement of Shahid Butt the following lines have been added in different ink/handwriting:‑‑

At the, end of the statement made by Muhammad Asif the words, have been cut off and the following words added in different ink/handwriting:‑‑

Similarly, in the statement made by the complainant before the Inquiry Officer on 28‑5‑1998 placed on the investigation filed vide Zimni No. l para.2, dated 1‑6‑1998, the words:‑‑ were added in different ink and handwriting on the first page and at the end the following words were added in different ink and handwriting:‑‑

The above additions and alterations appear to have been made to add to the gravity of the case against Abdul Waheed Khan, co‑accused. On the basis of this kind of inquiry, the Director, Anti‑Corruption readily ordered registration of a case against the accused persons.

10. The recoveries said to have been made from the accused persons have yet to be proved at the trial. The currency notes produced by Muhammad Iqbal, petitioner and Ch. Nazir Ahmad co‑accused are not tainted ones and it is not possible to say that the same were received by them from the complainant as illegal gratification. The recovery of Rs.5,00,000 from Abdul Waheed Khan co accused was made through cheque, dated 2‑6‑1998 drawn on Union Bank Limited. This recovery might be the result of duress (as claimed by the petitioner's learned counsel) and is otherwise deprecable as the complainant had allegedly paid a total sum of Rs.2,60,000 to the said accused. It has yet to be proved at the trial whether the money lying in the bank accounts of Abdul Waheed Khan co‑accused was the bribe money or collected illegally by misusing his official position or was his lawful earning from legitimate sources.

11. The medical certificates placed on the record show that Abdul Waheedl Khan, accused, is a heart patient. He is suffering from Ischemic heart disease and had undergone Angioplasty in the year 1990. This is proved by the medical i certificates Annexures "E", "E/1" and "E/2". He is admitted in Punjab Institute of Cardiology since 4‑6‑1998, is still on bed‑rest and has not yet been allowed to move. Thus, he is a sick person within the meaning of law and deserves concession of bail even on medical grounds under the first proviso to section 497 of the Cr.P.C. In the case of Sardar Khalid Umar, it was held that an accused person suffering from heart ailment, though attending to his duties, was entitled to grant of bail under the first proviso to section 497(1) of the Cr.P.C. The judgment in the said case was upheld by the Supreme Court of Pakistan in the case of Sadiq Ali Shah.

12. The argument raised by the learned A.A.‑G. that the complaint was submitted before the Minister for Labour and Manpower, Government of the Punjab, in his capacity as the Chairman, District Anti‑Corruption Committee appears to be untenable. Firstly, the Minister did not entertain the application in his capacity as Chairman District Anti‑Corruption Committee. The stamp borne on the complaint is that of the Minister, Labour and Manpower. Secondly, by virtue of the provisions of the fourth proviso to Rule 20(1) of the Rules, Federal Ministers, Ministers of State and Provincial Ministers are debarred from being Chairmen and Members of the Committee.

For the foregoing discussion the petition is accepted and the petitioner is allowed bail subject to his furnishing bail bond in the sum of Rs.25,000 with one surety in the like amount to the satisfaction of Additional Registrar (Judicial/Deputy Registrar (Judicial) of this Court. Copy Dasti..

N.H.Q:/M‑740/L Bail allowed.