SHAHBAZ ALI MALIK Versus STATE

Petitioner Shahbaz Ali Malik is an accused of the commission of offence under sections 420/468/471/409 and 218, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 in terms of case F.I.R. No.3, dated 2-6-1999 registered at Police Station Anti-Corruption Establishment Narowal. Precisely, the allegation against the petitioner is regarding the embezzlement of a sum of Rs.7,12,797 in the pension fund of Municipal Committee, Shakargarh .during the period from 1-7-1995 to 30-9-1997 during the tenure of the petitioner as the Chief Officer, Municipal Committee, Shakargarh. The second act of embezzlement alleged in the F.I.R. was with regard to an amount of Rs.3,05,473 which was paid to the contractors without the execution of work. The F.I.R. in this case is based on the report of the Secretary to the Government of Punjab Local, Government and Rural Development, Lahore through his letter dated 10-3-1998 alongwith a report of the Commissioner, Gujranwala Division, dated 16-12-1998.

2 The petitioner was taken into custody on 2-6-1999 and is behind the bars since then. The main ground urged for purposes of bail on his behalf is that the petitioner in his capacity as the Chief Officer of the Municipal Committee was not supposed to handle the accounts, rather the same was to be done by the other officials therefore, there is no overt act on his part with respect to the embezzlement of any amount from the pension fund. That likewise, under Chapter IX Execution and Inspection of Works under the Punjab Local Councils (Works Rules, 1981), the Local Council Engineer and his subordinates were responsible for ensuring that:--

(a) All works are executed in the best interest of the Local Council;

(b) All works are executed in accordance with the specifications in the sanctioned estimates and the provisions of these rules; and

(c) The terms of contract are strictly enforced and nothing is done tending to nullify or vitiate a contract.

3. It is further submitted that no enquiry was held before taking action against the petitioner and his arrest was made without any lawful justification in spite of the fact that a notice was issued to the petitioner for hearing and production of his evidence. The above-referred notice is annexed with this petition as Annexure "C" and has been issued by the Assistant Director (Investigation), Directorate of Anti-Corruption Establishment, Punjab and is dated 17th of May, 1999 asking the petitioner to produce his evidence on 2-6-1999 on which date he was arrested.

4. Miss Safina Siddique, Assistant Director Anti-Corruption present in Court was questioned as to whether any hearing was afforded to the petitioner and he was granted an opportunity for the production of his defence pursuant to the notice referred to above. Her reply was in the negative. According to her, petitioner was not heard in pursuance of the notice: She further states that the arrest of the petitioner was made on the basis of the material already available with the Anti-Corruption Establishment. In fact, she tried to justify the action of the arrest of the petitioner on 2-6-1999 by stating that the notice in question was a routine procedure of procuring the attendance of people intended to be arrested. It is further interesting to note that there is an endorsement typed in English in the following manner:--

"It has been observed that you have not been turning up despite receiving summons issued earlier. Please ensure compliance to avoid proceedings under sections 172 to 17.4, P.P.C. and ex parte judgment.

(Sd.) Safina Siddique"

5. A bare reading of the aforesaid endorsement makes it crystal clear that there is 'an admission of fact on the part of the Investigating Agency that the petitioner had not been appearing, therefore, the stand taken by the Anti- Corruption Establishment that enquiry had, been completed is falsified by its own Notice dated 17-5-1999. Obviously, the circumstances giving rise to the sudden arrest of the petitioner are dubious and mysterious, inasmuch as, instead of having recourse to a lawful procedure, the Anti-Corruption Establishment used the4foresaid notice as a tool to cajole and arrest the petitioner. Evidently, the entire action of the Anti-Corruption Establishment qua the arrest of the petitioner is questionable.

6. Firstly, no one should be condemned unheard, and if an opportunity is voluntarily offered by an organ of the State, public morality requires adherence to this offer otherwise there shall always exist a credibility gap between the Government and the governed. Credibility being an essential characteristic of a civilized State. As a matter of fact, the Anti-Corruption Department is meant to he a check against the corruption and corrupt practices and it has, therefore. to he fair and clean itself and this should be visible to the public.

7. It is hereby directed that the Directorate of Anti-Corruption Punjab shall ensure that if a Notice for hearing is issued to an individual for hearing and producing his evidence/defence, the Department shall remain truthful to its commitment and obligation and shall not arrest any person until the enquiry is unalized against him. Needless to add that sufficient time for the production of evidence shall have to be provided in the interest of justice. A copy of this order shall be sent to the Director Anti-Corruption Establishment, Punjab for immediate compliance of this order throughout the Province. He is directed to submit his compliance report to this Court.

8. Since the petitioner was not heard right from the day of the Notice, dated 17-5-1999, therefore his detention cannot be considered as justified in law, Consequently. I am inclined to admit him to ad interim post-arrest bail. He shall he released on bail subject to his furnishing bail bonds in the sum of Rs.1,00.000 (Rs. one hundred thousand only) with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court.

9. It is clarified that the petitioner Shahbaz Ali Malik is being admitted to interim bail for six weeks only with a view to provide him an opportunity of being heard by the Anti-Corruption Establishment to terms of Notice, dated 17-5-1999 and to produce his defence version before it. The Anti -Corruption Establishment is directed to act fairly, honestly and strictly in accordance with law in the collection of material against the petitioner. Case shall be relisted after six weeks. The petitioner and the Investigating Officer shall appear in person.

Q.M.H./M.A.K./S-427/L

Order accordingly,

THE END