Hamad Ellahi etc. vs The State etc.

Hammad Elahi etc. The State etc.

5.29.8.2013. Mr. Muhammad Anas Bin Ghazi, Advocate with the petitioners.

Mr. Abdul Samad, Additional Prosecutor General and Mr. Aqeel-ur-Rehman Khan, Deputy District Public Prosecutor with Hassan Raza Khan, Deputy Director (Investigation), Anti Corruption Department and Salman Ahmad, Asstt: Controller (Certificate), Punjab University, Lahore with record.

Through this petition, Hammad Elahi, Tariq Javed and Muhammad Saleem, petitioners have sought pre-arrest bail in case F.I.R. No. 44 dated 27.4.2013, offence under sections 420/468/471 P.P.C. read with Section 5 of Prevention of Corruption Act, 1947 registered at Police Station Anti Corruption Establishment, Lahore.

2.The case was registered on the statement of Ms. Shahida Furrukh Naveed, Deputy Secretary, Admn. Law & Parliamentary Officer Department Punjab, Lahore by stating that officials of the Solicitor’s Department, Government of the Punjab procured their promotion as Assistant District Attorney by producing forged LL.B. degree. During course of disciplinary proceedings, the charges were established and on the recommendations of the Inquiry Officer, the competent authority imposed major penalty of dismissal from

service upon Muhammad Saleem, Senior Clerk, Tariq Javed, Stenographer, Saif Ullah, Stenographer and Hammad Ellahi Tarrar, Head Clerk. It was further stated that departmental appeal of the petitioners was also dismissed by the Chief Secretary. It is also on record that the above said employees also drew financial benefits of higher posts illegally.

3.It has been contended by the learned counsel for the petitioners that they have falsely been roped in this case with malafide intention and ulterior motives; that during the inquiry the petitioners were found guilty on the basis of presumption and suspicious which is against the law; that prior to registration of the instant case, the University of the Punjab submitted verification report to the office of Solicitor with regard to genuineness of the degrees and result card but unfortunately said verification report was also got misplaced in the said office; that the petitioners’ services have already been terminated, therefore, registration of criminal case with regard to same offence come within the purview of double jeopardy which is not permissible under the law; that the petitioners have no nexus with the alleged crime which does not fall within the prohibitory clause of section 497 Cr.P.C.; that the investigation is complete and they are no more required for further investigation and as such the petitioners are entitled to the concession of pre-arrest bail.

4.On the other hand learned Law Officer have vehemently opposed the bail petition by stating that the petitioners are named in the F.I.R. with specific

allegation of preparing forged and fictitious degrees and result card; that sufficient incriminating material is available on record to connect the petitioners with the commission of alleged offence; that during departmental inquiry the petitioners have been found guilty; that the offence with which the petitioners have been charged, falls within the prohibitory clause of Section 497 Cr.P.C. as such the petitioners are not entitled for concession of pre-arrest bail.

5.I have considered the arguments of the learned counsel for the parties and have perused the record available on file.

6.Admittedly the F.I.R. in this case had been lodged with delay of two years and two months which goes unexplained and on account thereof, the veracity of the prosecution case has become doubtful. As per accusation contained in the crime report, the petitioners had not qualified LL.B. Degree, whereas claim of the petitioners is that they are Law Graduates. It is also of much significance to observe that verification of two Roll Numbers was sought from University of the Punjab with regard to genuineness of the degrees through letter dated 1.7.2010, whereas report was submitted on 26.6.2010 through letter No.D/B-1134/C, Roll Number 1088 which belongs to Tariq Javed. On the other hand, there are two verification reports of Hammad Ellahi Tarrar, first was issued on 28.2.2001 according to which particulars of candidate were found correct, whereas second report dated 14.6.2010 was in negative and as per record the candidate was found fail. The learned

Law Officer along with the Controller Examination, University of the Punjab with record, shows that false entries were made in the relevant registers. On Court query they badly failed to show that forgery was committed by the petitioners and could not point out that it was the petitioners who had forged the record of University of the Punjab. In this regard they expressed their inability. All that they have argued is that the petitioners are guilty of criminal misconduct as well as caused loss to the Government exchequer. It will not be out of place to mention here that the petitioners were dismissed from service on 30.11.2010 by the Prosecution Department who remained silent for sufficient period of two years and two months. The manner in which verification reports were issued by the University of the Punjab and its genuineness will be determined by the learned trial court after recording of evidence. It is also a matter of record that all the petitioners have challenged the dismissal order in the Punjab Service Tribunal and the same was admitted to regular hearing which is pending adjudication. Hence, until and unless proper verdict is brought on record by the Punjab Service Tribunal qua its authenticity, the prosecution accusation contained in the F.I.R. cannot be taken as stricto senso especially when there are different verification reports and it was mentioned in dismissal order dated 30th November 2010 “that no recovery from pay and allowance drawn by them shall be made”. The offences mentioned in the F.I.R. are not hit by the prohibitory clause of Section 497 Cr.P.C. hence in case not punishable with death, transportation for life or ten

years imprisonment, grant of bail is a rule and refusal is an exception as held by the Hon’ble Supreme Court of Pakistan in the case reported as Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) wherein it has been held by the Apex Court that:-

“In bailable offences the grant of bail is a right and not favour, whereas in non- bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offense punishable with imprisonment or less than ten years. In non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases”.

This Court is conscious of the fact that consideration for pre-arrest bail and that of post-arrest are altogether different, further in view of ratio decidendi of Supreme Court of Pakistan in case of Miran Bukhsh v. The State (PLJ 1989 SC 526) the Court can touch upon the merits of the case while deciding pre-arrest bail petition. Similar view was affirmed in the case reported as Saeed Ahmed v. The State (1995 SCMR 170). Needless to mention that liberty of a person is a valuable right guaranteed under the Constitution of Islamic Republic of Pakistan, 1973 and the same cannot be denied for the above stated reasons.

7.Keeping in view the facts and circumstances of the case, this petition is accepted and ad-interim pre- arrest bail already allowed to the petitioners is confirmed subject to their furnishing fresh bail bonds in the sum of Rs.2,00,000/- each with one surety each in the like amount to the satisfaction of the learned trial court. However, it is made clear that the observations made above are tentative in nature and shall not affect upon the merits of the case.

(Aalia Neelum) Judge Approved for reporting.

Judge

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