PLJ 2011 SC 55
[Appellate Jurisdiction]
Present:
Iftikhar Muhammad Chaudhry,
C.J., Ch. Ijaz Ahmed and Ghulam
Rabbani, J.
SHAHZAD
AHMED--Petitioner
versus
STATE
through FIA
Crl. Petition No. 773 of 2009, decided on 13.4.2010.
(Against
the order dated 16.11.2009 passed by the Lahore High Court, Rawalpindi
Bench, Rawalpindi, in Crl. M.No. 1087-B of 2009).
Bail--
----Discretion
of a Court--Releasing of the accused on bail is not as a matter of right but is
a privilege to be granted at the discretion of a Court to be exercised in
accordance with well established sound judicial principles--If a discretion has
been exercised after considering all the facts and circumstances of the case, properly
appreciating the question involved in it, it would be a proper exercise of
discretion and Supreme Court would refuse to interfere. [P. 60] A & B
Bail--
----Reasonable
grounds to believe--In case of bail the Court is not required to probe into the
matter but has to make a tentative assessment of the material produced to
ascertain whether there are reasonable grounds to believe that accused has
committed the crime. [P. 60] C
1995 SCMR 1249 & 1994 SCMR 1283, rel.
Maxim--
----Man
is born innocent, it is the institutions of society
that spoil him. [P. 60] D
Institutionalized
Corruption--
----Bloody
putrescence of the virus oozes out of every pore of the body politic and every segement of national life, be it government, politics,
business law, medicine health or education--The Court will now play a
significant role in eradicating corruption and other social evils--In such a
situation a more pragmatic approach than has been the case so far on the parts
of the Court is needed at the investigation as well as bail stages of
corruption cases, because if the Courts show almost motherly leniency towards
people accused of high corruption then it would be impossible to successfully
investigate and help bringing the culprits to book or to check the over
increasing cancer of corruption. [P.
60] E & F
Bail--
----Essentials--While
deciding bail application the Court should consider the following pieces of
evidences i.e. allegations made in FIR, contents of FIR and statements recorded
u/S. 161, Cr.P.C. other incriminating material
against accused, nature and gravity of the charges & plea raised by the
accused. [P. 61] G
Bail--
----Sufficient
material to connect the petitioner with commission of offence--Validity--To
grant or refuse bail is discretion of the Courts--Both the Courts below had
refused to exercise discretion in favour of the
petitioner with cogent reasons. [P.
61] H
Bail--
----Constitutional
Court--Supreme Court is primarily a constitutional Court and not expected to go
into matters concerning grant of bail by High Court unless and until the High
Court had exercised discretion in violation of settled principles laid down by
Supreme Court. [P. 61] I
Constitutional
Jurisdiction--
----Constitutional
jurisdiction is discretionary in nature--He who seeks equity must come with
clean hands. [P. 61] J
Administration
of Justice--
----Each
and every case is to be decided on its own peculiar facts and circumstances
coupled with the fact that Supreme Court has ample jurisdiction to look into
subsequent events at the time of deciding the case. [P. 61] K
Principle
of Consistency--
----Observations
while deciding or rejecting bail application are
tentative in nature. [P. 61] L
Mr.
Tariq Mehmood, Sr. ASC for
Petitioner.
Mr.
Ansar Nawaz Mirza, ASC Special P.P., FIA. for
State.
Raja
Alleem Abbasi, DAG Mr. Zafarullah Khan, D.G., FIA Mr. Azam
Khan, Dir (L) FIA on Court Notice.
Date
of hearing: 13.4.2010.
Order
Ch.
Ijaz Ahmed, J.--Necessary facts out of which the
present petition arises are that petitioner is involved in a case FIR No. 13
which was registered against him alongwith his
co-accused by Ministry of Interior, Islamabad, on 19.5.2009 at Police Station
FIA/CC Rawalpindi, under Sections 420, 468, 471, 109
PPC read with Section 5(2) PCA, 1947 and Sections 3, 4, 5, 6, 7, 8, 9, 10, 18
& 19 of PECO, 2007 (re-promulgated in 2008/09) read with Section 37 of ETO,
2002. The contents of the FIR depict that Ministry of Interior published an
advertisement (tender notice) in June,
2. Petition was fixed before this Court on
5.1.2010 and it was ordered that notice to the State through Director General
FIA for 8th January, 2010 be issued. Subsequently the petition was fixed on
17.3.2010 and the following order was passed:
"We
have heard learned counsel for the petitioner, learned Deputy Attorney General
and have perused record particularly the statement of two witnesses namely Aftab Ali and Sibghatullah Afridi. A perusal whereof indicates that so far
investigation of the case has not been conducted thoroughly to involve all
those persons responsible for commission of offence, therefore, in view of the
importance of the matter where a huge amount belonging to public exchequer has
been misappropriated prima-facie fraudulently. We direct D.G., F.I.A. as well
as Secretary, Ministry of Interior to take over the investigation of this case
from Inspector Ijaz Ahmed Khan and complete the same
within the period of five days adjourned to 25th march, 2010."
On
the next date of hearing, i.e, 25.3.2010 the
following order was passed by this Court:--
"D.G.,
F.I.A. appeared and submitted a summary, perusal whereof indicates that
directions ordered by this Court on 17.3.2010 have not been complied with as
instead of taking-over investigation by D.G., F.I.A. himself, he has
handed-over the same to Director, F.I.A., Islamabad. On our query, he stated
that now today he will take-over the matter in his hand and shall conduct
investigation as per direction earlier made by this Court on 17.3.2010.
However, he stated that one month's time may be given to him to do the same.
Since sufficient time has already been consumed by the F.I.A. and in the
interest of justice, we grant one week time to complete the investigation and
submit the report. It is also informed that applications have been moved by
them for the cancellation of bails of the accused persons who had already been
released in the instant case, D.G. F.I.A. would also try to get the decision of
this case as soon as he can so we may know actual position of the case. Learned
counsel for the petitioner stated that he has been kept in custody without any
justification because according to him there is no evidence against him to
involve him in the commission of the offence. An opinion shall be taken up in
respect of his grant or otherwise of bail on the next date of hearing."
3. The learned counsel for the petitioner
submits that petitioner is innocent. He entered in the Ministry of Interior
with the permission of the competent authority as the petitioner had
participated in the auction proceedings held by the Interior Ministry in
response to an advertisement appeared in the "National Dailies". The
petitioner has provided service to the Ministry concerned as the memory of the
old server reached its limit and NADRA was unable to upgrade due to non
availability of the required disk in the market and the Department wanted to
clear the back log, therefore, petitioner was requested to provide server. Dr. Akhtar Ali Haiker, Section
Officer, was granted bail after it has been observed and also confirmed by the
prosecutor as well as the I.O. that the licenses were issued as per order of
the competent authority and no license had been issued without the said order
and is bogus or forged. It was also noted that the only fact which has made the
licenses objectionable is that the vouchers submitted towards payment of the
fee for the licenses were bogus. Nothing is available on the record to suggest
if the bogus vouchers have been filed with the connivance and in collusion with
the petitioner or the said mischief has been committed by the
individuals/license holders. He further urges that learned Special Judge
Central Rawalpindi erred in law to dismiss the bail
application of the petitioner in violation of the principle of consistency.
This mistake/error was not rectified by the learned High Court in the impugned
order.
4. The learned Public Prosecutor, F.I.A., has
supported the impugned order. In response to the previous orders he has
submitted inquiry report consisting of 51 pages. He further urges that
sufficient material has been brought on record to connect the petitioner with
the commission of offence. The petitioner had received huge amount with the
connivance of his co-accused from the Interior Ministry without providing any
single stationery items as mentioned in the tender notice. Petitioner is
principal accused and his case is distinguished from the case of his co-accused
due to which the Courts below had rejected his prayer for grant of bail.
5. We have given our anxious consideration to
the contentions of the learned counsel of the parties and perused the record.
It is an admitted fact that competent authority had not issued any work order
to the petitioner as the petitioner had failed to bring on record work order in
spite of our repeated queries and this fact is also admitted by his Counsel
that the department had not issued any work order to him. However he had
supplied tender items to the Ministry of Interior in view of the peculiar
circumstances of this case as highlighted in the orders of this Court
reproduced hereinabove. D.G., FIA,
(a) Allegations made in the FIR.
(b) Contents of the FIR and statements
recorded under Section 161 Cr. P.C.
(c) Other incriminating material against
accused.
(d) Nature and gravity of the charge.
(e) Plea raised by the accused.
We
have examined the material on record alongwith report
submitted by D.G., FIA mentioned hereinabove. We have come to the conclusion
that there is sufficient material to connect the petitioner with commission of
offence. It is settled principle of law that to grant or refuse bail is
discretion of the Courts. Both the Courts below had refused to exercise
discretion in favour of the petitioner with cogent
reasons mentioned in the impugned order of the Lahore High Court, Rawalpindi Bench, Rawalpindi and
also highlighted reasons by the Special Judge Central Rawalpindi
vide its order dated 23.6.2009. This Court is primarily a constitutional Court
and not expected to go into matters concerning grant of bail by the High Court
unless and until the High Court had exercised discretion in violation of
settled principles laid down by this Court. Even otherwise it is settled
proposition of law that constitutional jurisdiction is discretionary in nature.
He who seeks equity must come with clean hands. Keeping in view the conduct of
the petitioner as depicted from the material on record we are not inclined to
exercise our discretion in favour of the petitioner.
It is also settled principle of law that each and every case is to be decided
on its own peculiar facts and circumstances coupled with the fact that this
Court has ample jurisdiction to look into the subsequent events at the time of
deciding the case. In view of the subsequent report submitted after
investigation by the D.G., FIA clearly depict that the petitioner is connected
with the commission of offense, therefore, principle
of consistency does not arise in the case in hand. It is also settled
proposition of law that observations while deciding or rejecting bail
application are tentative in nature.
6. In view of the what
has been discussed above this petition has no force and the same is dismissed.
Leave is refused.
(R.A.) Leave
refused.