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Criminal Miscellaneous No. 445-B of 1984, decided on 2nd May, 1984

-- S. 497-Penal Code (XLV of 1860), S. 409 - Bail, grant of -Prosecution witnesses swearing affidavits exonerating petitioners and falsifying allegation of forgery against them - No evidence of criminal misappropriation as punishable under S. 409, P. P. C. available while remaining allegations not falling within prohibitory clause of S. 497, Cr. P. C.-Question of guilt of petitioners, held, required further enquiry and as such a fit case for grant of bail ---Bail allowed, in circumstances.

Sahibzada Farooq Ali Khan, Syed Ehsan Qadir Shah, Malik Muhammad Ramzan Khalid and Altaf Ibrahim Qureshi for Petitioners.

Ch. Akhtar Masood for the State.

This is an application for bail on behalf of Muhammad Asghar Mahmood and Muhammad Sadiq petitioners in case under sections 467, 468, 471, 409/109 and 161, P. P. C. and section 5 (2) of the Prevention of Corruption Act, 1947, registered at P. S. Anti-Corruption, vide F. 1. R. No. 48/83 dated 6th October, 1983.

2. The prosecution case is that in consequence of a source report received by the Director Anti-Corruption, Lahore, an enquiry was made against the accused persons on the allegation that an examination of Patwar was held at Damaki Bungalow, Tehsil Mailsi under the supervision of Muhammad Asghar Mahmood XEN. According to the record prepared by the department, 847 candidates appeared in the said examina tion, out of whom 302 candidates were declared successful. Enquiry revealed that the names of the three co-accused Wazir Ahmad, Muhammad lqbal and Muhammad Ramzan and 3 others were not men tioned in the list of the candidates who appeared in the said examination but Muhammad Asghar Mahmood XEN issued them Patwar Sanads dis honestly after having received Rs. 5,000 as illegal gratification from each of them. Enquiry also revealed that be demanded and accepted Rs. 5,000 from successful candidate namely Rab Nawaz Patwari for banding over Patwar SAMAD to him. It was also found that in order to give cover to his misdeed, Muhammad Asghar Mahmood alongwith Gulzar Muhammad and Muhammad Sadiq, the petitioner destroyed answer sheets of the examination. Further he did not maintain the list or register of successful candidates which he was required to maintain under the Manual of Administration of Irrigation Department.

The petitioners were allowed bail before arrest by Senior Special Judge Anti-Corruption. While hearing Criminal Miscellaneous S. C. 445/B of 1984, 1 issued suo moth notice for the cancellation of bail granted to them by Senior Special Judge. Since I was satisfied that the Senior Special Judge had allowed pre-arrest bail to the petitioners in disregard of the principles laid down by the Superior Courts, therefore, I cancelled their bail on 21st April, 1984. The petitioners have now moved application for bail after arrest.

4. The learned counsel for the petitioners submits that the two prosecution witnesses namely Mian Aftab Hussain S. D. O. and Rana Sher Muhammad S. D. O. have, in their affidavits sworn on 1st May, 1984, belied the prosecution case; that the answer sheets have been destroyed after the examination in accordance with the relevant rules and that the prosecution has failed to collect any evidence of misappropriation against the petitioners.

Conversely, the learned counsel for the State has opposed this application.

5. I have considered the arguments advanced by the learned counsel for the parties with care. I find that pre-arrest bail granted to the peti tioners by the learned Senior Special Judge was cancelled by me on 21st April, 1984 because the same was granted in disregard of the guiding principles laid down by the superior Courts, inasmuch as, mala fide condi tion of intended arrest was not considered by him and that thin considerations for the grant of pre-arrest bail and bail after arrest are different. I further find that while cancelling pre-arrest bail I had also taken into account the statements of Mian Aftab Ahmad and Rana Sher Muhammad S. D. O., who have now sworn affidavits exonerating the petitioners and falsifying the allegations of forgery against the petitioners; that the challan has already been submitted before the trial Court; that the peti tioners are no more required for investigation; that there is no evidence of criminal misappropriation punishable under section 409, P. P. C. against the petitioners ; that the offences under sections 468, 471, 161 and 5 (2) of Prevention of Corruption Act, 1947 do not fall within the prohibitory clause of section 497, Cr. P. C. and that the affidavits were not avail able when bail after arrest of Iqbal, Ramzan and Wazir co-accused was refused.

6. For what has been found above, the question of the guilt of petitioners requires further enquiry and as such it is a fit case for grant of bail after arrest. They shall be released on bail on their furnishing bail bonds in the sum of Rs. 20,000 with one surety each in the like amount to the satisfaction of Additional Registrar of this Bench.

S. G. D. Bail allowed.

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