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Criminal Miscellaneous No. 1754-B of 1986, decided on 28th December, 1986.

- --S. 498--Penal Code (XLV of 1860), S.409--Prevention of Corruption Act (II of 1947), S.5(2)--Pre-arrest bail, grant of-- Misappropriation- accused allowed interim bail by Special Judge (Central)--Accused producing medical certificate on date of hearing instead of appearing before Court--Special Judge not accepting certificate, dismissed application--Allegations of relationship and strained relations of accused with Special Judge made in application--Special. Judge denying such allegations--Special Judge not getting chance to decide matter on merits--Proper course for accused, being to approach Special Judge again where all points on merits could be urged, interim bail extended to enable accused to move Special Judge in circumstances.

Ch. Muhammad Farooq for Petitioner.

Raja Muhammad Anwar with Naeem-ul-Hasnain for the Complainant.

Farooq Bedar A . A . -G . for the State.

Ch. Muhammad Akbar Virk son of Ch. Ghulam Muhammad, Deputy General Manager in the Pakistan Agricultural Storage and Services Corporation (PASSCO) was admitted to ad interim anticipatory bail by me by order, dated 25-6-1986.

The petitioner is being prosecuted under section 409, P.P.C. and section 5(2) of Prevent on of Corruption Act, 1947. It is alleged that the petitioner in his capacity as Deputy General Manager in the Pakistan Agricultural Storage and Services Corporation (PASSCO) at Muzaffargarh, misappropriated a sum of Rs.5,72,900.

Before coming to this Court the petitioner applied for pre-arrest bail before Special Judge (Central) Lahore. He was allowed interim bail. Then the petitioner did not appear on the date of hearing but instead submitted medical certificate signed by Dr. Khalil-ur-Rehman. The Special Judge declined to accept the certificate on the ground that it was easy to procure such type of certificate. He, therefore, did not extend the pre-arrest bail and dismissed the application.

I heard counsel for the petitioner at length, also Assistant Advocate-General as well as counsel for the complainant. Investigating Officer was also present. Mr. Maqbool Hussain who conducted the audit also appeared.

The Assistant Advocate-General raised preliminary objection that the interim bail of the petitioner was withdrawn' by the Special Judge on the ground that the Special Judge was not satisfied about the genuineness of the medical certificate. He did not go into the merits of the case. It was argued that I should, therefore, direct the petitioner to approach the Special Judge who shall further be ordered to decide the matter afresh after going through the merits of the case.

This was objected to by the counsel for the petitioner on the ground that the petitioner had given reason in para. 8 of this petition on account of which It is not possible for hint to appear before the Special Judge and that this Court should, therefore, decide the bail petition.

I called for a report from the Special Judge with regard to the averments in paragraph 8 of the petition.

On 13-7-1986 the matter came before a learned Judge of this Court because I was not available on that day. He observed:----

"The report of the learned Special Judge, Lahore has been received. He had denied the allegation that the petitioner is related to him. However, he has admitted that Khalid Mehmood Cheema, Civil Judge (claimed to be nephew/son-in-law of the petitioner) served under him at Jhang and he had given him an adverse report in the year 1983-84. In the circumstances, it would be appropriate if this bail petition is heard and decided by this Court.

The Investigating Officer as well as the learned counsel for PASSCO have not been able to furnish correct and full information about the evidence collected so far in support of the allegations against the petitioner. The Investigating Officer submitted that he would need four weeks time to collect further necessary evidence and for tabulating the incriminating material so far collected.

Learned counsel for the petitioner submits that he is proceeding abroad for holidaying and will be back in Pakistan by the 8th of September, 1986, therefore, the case may be adjourned to a date after the summer 'vacation. Accordingly the case is adjourned to the 16th September, 1986. The interim pre-arrest bail granted earlier to the petitioner is extended till then."

Full dress arguments were heard on 19-10-1986. Since then the judgment has been reserved. I was too busy. Therefore, I could not announce the judgment earlier.

Learned counsel for the petitioner submitted that the petitioner is a public servant. Hence F.I.A. is not competent to investigate the matter. Prosecution of the petitioner, as such, was null and void.

Learned counsel argued that there has been a delay of five years in lodging the F.I.R. which shows that during all this time there was no material with the prosecution to challan the petitioner and the prosecution remained busy in collecting false evidence as result of which the present case was concocted against the petitioner.

According to the learned counsel investigation has been going on since May 1986. The prosecution even now has failed to find any incriminating evidence against the petitioner. Counsel submitted that it is a case of no evidence.

Learned counsel for the complainant submitted that the case was first investigated by the F.I.A. When the Investigating Officer found strong and overwhelming evidence against the petitioner then the F.I.R. was lodged.

Assistant Advocate-General's stance was that if at all any concession is to be given to the petitioner then his interim bail be extended and he be ordered to appear before the Special Judge because the Special Judge did not go into the merits of the case and the certificate submitted by the petitioner before him did not justify his absence either on the date of hearing or subsequently.

The Special Judge Central in his order, dated 17-6-1986 observed that the petitioner was allowed interim pre-arrest bail on 7-6-1986. On 17-6-1986 the petitioner absented himself in spite of the direction by him to appear personally.

A medical certificate was produced on his behalf that he was heart patient and was advised two weeks bed rest by Dr. Khalil-ur- Rehman. In the opinion of Special Judge 'such like medical certificates can be procured in this country by the persons who are interested in delaying judicial proceedings in the Courts of Law'. The Special Judge was of the view that prima facie 'it is a procured certificate with a view to avoid the personal appearance in the Court today'.

As the petitioner failed to appear on the date of hearing the Special Judge was of the view that he misused the interim relief. He, therefore, dismissed the pre-arrest bail application for non-appearance. It is, therefore, obvious that he did not go into the merits at all.

Now I advert to para. 8 of the bail application. In this it is stated that 'the petitioner hails from District Sialkot. The learned Special Judge (Central) Lahore (Mr. Nafeez Ahmad Bajwa) also belongs to Sialkot District. The petitioner and the learned Special Judge belong to the same Bradari and are also distantly related. However, the relations between the petitioner and Mr. Nafees Ahmad Bajwa were strained due to some family affairs'.

Para. 8 further reveals that real nephew and son-in-law of the petitioner was posted as Civil Judge Jhang while Mr. Nafees Ahmad Bajwa was there as District and Sessions Judge. He spoiled the annual confidential report of the petitioner's son-in-law. However, the adverse remarks were expunged. The petitioner as such apprehended that he would not get justice from the Special Judge. But in spite of all that he moved the Special Judge for bail and complied with the legal requirement. Nevertheless, the order of the Special Judge, dated 17-6-1986 gave genuine apprehension to the petitioner that he would not get justice from the Special Judge.

In the report submitted by the Special Judge it is stated that the petitioner is neither related to him nor belongs to his brotherhood. Petitioner is not even known to the Special Judge. Hence there is no question of strained relations.

This fact is admitted by the Special Judge that Khalid Mahmood Cheema worked under him at Jhang for some time but then it was not known to him that the Civil Judge was related to him. Khalid Mahmood Cheema introduced himself to the Special Judge as nephew of Ch. Inayat Ullah Cheema who was then Additional Sessions Judge, Mianwali. It is further mentioned in the report that instead of any strained relations with the Civil Judge he had soft corner for him as he was relative of his colleague. The Special Judge admitted that he gave adverse remarks that he was not fit for promotion but that was done in order to improve the efficiency of the Civil Judge. Otherwise, there were specific complaints of corruption against him. There was a report with the Anti-Corruption Establishment Jhang which was lodged by a litigant on the allegation that the Civil Judge demanded illegal gratification. According to the Special Judge he was not aware whether the adverse remarks were expunged. Regarding the medical certificate, the Special Judge was of the view that it was a procured document. So, he refused to adjourn the proceedings.

Before disposing of this petition I would like to observe that the counsel for the petitioners raised number of contentions to establish that the case against the petitioner was false. There was not an iota of evidence to support the allegation of misappropriation. In support of this learned counsel drew my attention to number of documents placed on the record. It was argued that the petitioner had been made a scape-goat.

The Special Judge has denied the allegations levelled in para. 8 of the bail petition. He did not get a chance to go into the merits of the case. Hence, I do not think he is in any way prejudiced against the petitioner.

Therefore, the proper course open to the petitioner is to approach the Special Judge (Central) again where all these points can be urged. The interim bail is extended till 8-1-1987 to enable him to move the Special Judge.

The petition is disposed of accordingly.

Before concluding, I would like to observe that there was no justification to make a sweeping observation that such like medical certificates can be easily procured in this country by the persons who are interested in delaying judicial proceedings in the Court of Law. We owe everything to this soil and it is on account of this country today that we are posted at such exalted positions. Therefore, this is not proper to say such harsh words about the motherland. This is in bad taste.

If the Special Judge had any doubt about the genuineness of the certificate he should have enquired into and then taken appropriate action against the doctor rather than to condemn the entire medical profession.

S. A. Interim bail granted.

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