2004 P Cr (PLP)

Heard Mr. Hidayatullah A. Abbasi, learned counsel for the applicant and Mr. Ahmed Ali Shaikh, learned Standing Counsel, for the State. The applicant Ghulam Abbas has been challaned to face trial for the offence punishable under section 409, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947. Briefly stated the relevant facts are that the applicant was posted as Junior Store Keeper in the HESCO Jacobabad. Sindh an information was received about the embezzlement in the store of the HESCO Jacobabad. The F.I.R. was initially lodged at Civil lines Police Station Jacobabad. Subsequently, the F.I.R. was lodged with F.I.A, in which the earlier F.I.R. was reproduced. The investigation/inquiry was subsequently conducted and the final inquiry/investigation report was submitted by Maqsood Ali Shah, Inspector F.I.A. Crime Circle, Sukkur on 21‑8‑2001. During the inquiry it was found that the applicant Ghulam Abbas was absconding from duty since 2‑8‑1999 and in spite of directions to resume duty he remained absent, with the result that the inquiry was conducted in his absence. Hundred percent. stock verification was taken as on 5‑8‑1999 and 53 items were found short valuing Rs.2,06,26,

177. The Inquiry Officer after a thorough inquiry came to the conclusion that applicant Ghulam Abbas is involved in the embezzlement of the items kept in the field store. However, according to the Inspector F.I.A. other persons were also involved in the crime alongwith the applicant. An interim challan was submitted in the Court of Special Judge Anti‑Corruption (Central), Hyderabad on 17‑1‑2000. The challan was returned with a direction to intimate is the applicant/accused was arrested and to verify if he has drawn his salary during the entire period of his suspension. It was reported that he is absconding and is absent without leave. The challan was accepted on 8‑2‑2000 and non‑bailable warrants were issued against him on 25‑2‑2000. The applicant however, remained fugitive at law and ultimately on 7‑4‑2003 he submitted an application for protective bail before this Court. He was admitted to protective bail without considering the merits. He then submitted application for pre‑arrest bail before the trial Court. His application for pre‑arrest bail was rejected and he was remanded in custody on 29‑4‑2003. Thereafter he submitted application for bail after arrest on 21‑5‑2003 which was rejected on 30‑9‑2003. Mr. Hidayatullah Abbasi, learned counsel for the applicant has submitted that applicant is a Junior Store‑keeper and the Incharge of the Store was the Senior Store‑keeper. However, he has not denied that sometimes the store was in the charge of Senior Store‑keeper and on some occasions the store used to be in the charge of applicant Ghulam Abbas. He has contended that it is a case of further inquiry for the reason that according to inquiry report 53 items valuing over Rs.20 million were found missing and according to the same report 37 items were not received under the signature of applicant Ghulam Abbas. He has submitted that it is a matter of inquiry whether those 37 items were received in the store at "all or not. Mr. Abbasi has maintained that according to the inquiry report several other officers personnel of the HESCO/WAPDA are involved in the scam but except applicant Ghulam Abbas no other person has been challaned to face trial, which shores mala fide on the part of the prosecution. Mr. Abbasi has further maintained that the store is guarded by army personnel and he has made oblique references to indicate that the army personnel are also involved in it as they wanted to do away Ghulam Abbas in order to save their own skin. Mr. Abbasi has not denied that the applicant was absent from duty even after his suspension and thus was absconding for a period of three years as observed by the learned trial Court, but has submitted that mere absconsion is not sufficient to refuse the bail to an accused person if he is otherwise entitled to the concession of bail on merits. He has finally contended that the interim challan was submitted in the trial Court in January, 2000 and thereafter final challan has not been submitted. Sanction for prosecution has not been obtained as far and even after arrest of the applicant the trial has not' commenced. He has further submitted that merely because a huge amount is involved cannot, be a ground for refusal of bail to the applicant. He has urged that it is case of further inquiry as envisaged under section 497(2), Cr.P.C. and, therefore, the applicant may be enlarged on bail. Mr. Ahmed Ali Shaikh, learned Standing Counsel has opposed the bail application for the reason that huge amount is involved, which is more than 20 million and the applicant/accused remained absconder for a period of three years. He has submitted that if he was innocent, he ought to have cooperated with the Enquiry Officer for fixing the responsibility on persons who were actually responsible for the embezzlement. The learned Standing Counsel has submitted that direction may be given for obtaining the sanction, submission of final challan and commencement of trial. I have carefully considered the contentions raised by the learned Advocates for the parties and the material available on record. The fact that applicant Ghulam Abbas was a Junior Store‑keeper and on several occasions he was Incharge of the Store is not denied at this stage. The factum of embezzlement of the items valuing more than 20 million is also not denied at this stage. Even if the contention that 37 items were not received under the signature of applicant Ghulam Abbas is accepted for the purpose of considering the bail plea, the missing of 16 items is still unexplained which were received under the signature of applicant Ghulam Abbas. The reason that WAPDA officials and Army officials are also involved shall not absolve the applicant of his liability for the commission of offence. Appropriate direction can be given to the authorities concerned to look into the matter and to see that all the persons concerned are brought to justice. However, commission of wrong by other persons shall not provide a justification to the applicant, because commission of one wrong cannot be a justification for commission of another wrong. The contention that it is a case of further inquiry is not tenable in the facts and circumstances of the case. The considerations for grant of bail in an ordinary crime and white‑collar crime are entirely different. The law has been laid down in this behalf by the Honourable Supreme Court in the case of Imtiaz Ahmed v. State PLD 1997 SC 545, wherein it has been held as follows:‑‑ "I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C. in the absence of an exceptional circumstance may be followed, but in the later category the Courts should be strict in exercise of discretion of bail. In my view, the above category of the offenders belongs to a distinct class and they qualify to be treated falling within an exceptional circumstance of the nature warranting refusal of bail even where maximum sentence is less than 10 years' R.I. for the offence involved provided the Court is satisfied that prima facie, there is material on record to connect the accused concerned with the commission of the offence involved. The Courts should not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international magnitude, which cannot be resolved unless the whole Pakistani nation as a united entity makes efforts. The desire to amass wealth by illegal means has penetrated in all walks of life. The people commit offences detrimental to the society and the country for money. Some of the holders of the public office commit on facilitate commission of offences for monetary consideration. In the above scenario the Courts approach should be reformation‑oriented with the; desire to suppress the above mischieves. To achieve the above objective, it is imperative that the Courts should apply strictly the laws which are designed and intended to eradicate the above national evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice. It should not be overlooked that Article 9 of our Constitution, which relates to a fundamental right, guarantees life and liberty of every person. Life, inter alia, includes the right to have access to a fair and independent judicial forum for redress. A balance is to be struck between national and individual interest/right. The Honourable Supreme Court while dealing with another case of anti‑corruption Zeeshan Kazmi v. State PLD 1997 SC 267, observed as follows:‑‑ "The criminal instinct/propensity has penetrated to all walks of life. Some of the personnel of the State functionaries/agencies which are entrusted with the duty to protect the life, property and honour of citizen, either themselves actively participate in the commission of the heinous crimes or they provide protective umbrella to the criminals Their credibility has been denuded to the extent that the victims of the crimes do not approach them for their help or protection which they are otherwise entitled to as a matter of right under the Constitution. " Applying the above dicta laid down by the Honourable Supreme Court, I find that the present applicant Ghulam Abbas was entrusted with the protection of public property. He was Store‑keeper and he is, according to the inquiry report, actively involved in the embezzlement of the store items. The applicant by remaining absconder for a period of three years has further failed in his duty to cooperate in the inquiry/investigation and his conduct shows that prima facie he is not innocent as alleged. For the foregoing reasons I am of the opinion that the offence alleged being a white‑collar crime, or an offence against the society and nation, the applicant is not entitled to the concession of bail, which is hereby declined. However, before parting with this order I would like to direct that the sanction for prosecution may be obtained immediately. The final challan should be submitted without loss of any time and copy of this order alongwith the inquiry report be sent to the Director‑General, F.I.A., Islamabad. The Director‑General should carefully and minutely go through the entire inquiry report submitted by Inspector Maqsood Ali Shah of F.I.A., Crime Circle, Sukkur and may make further inquiry as deemed fit and should ensure that all other persons involved, howsoever, high or low they may be are brought to justice and a single person is not made the scapegoat. The persons providing protection to the persons involved in the swindle should also be taken to task. If any disciplinary actions are required by the WAPDA officials, the same should also be taken: A copy of this order alongwith the inquiry report be sent to the Chairman, WAPDA as well for taking appropriate action. It is expected that in the light of observations made by the Honourable Supreme Court in the judgments cited above the Director‑General, F. I. A. and Chairman, WAPDA shall not fail in their duty in bringing to book all the persons concerned for eradication of corruption, which has eroded the credibility of entire country in the comity of Nations. Director‑General, F.I.A. and Chairman, WAPDA shall .submit their compliance report/progress report in the case within three months to the Member, Inspection Team, High Court of Sindh, at Karachi, Who shall place the compliance report before me. N.H.Q./G‑20/K Bail refused.