2012 PLP 2727 (YLR)

MUHAMMAD FAROOQ SHAH, J.

This Bail Application after arrest filed on behalf of the applicant/accused Mumtaz Ali Jalbani booked in F.I.R. No. 7 of 2012 under sections 409/419/420/468/471/34/ 109/34, P.P.C. R/W 5(2) PC 1947) registered at Police Station FIA CCC Karachi, wherein prayer to grant of bail to the applicant has been made. Precisely, facts leading to this case are that on written complaint of Ahsanullah Cheema, Deputy Director (Coord), Directorate General (Audit), Federal Government, 14-ATIQ Plaza, Markaz, Islamabad detailed inquires were conducted, documentary and oral evidences were brought on record and it has been established that four accused persons in-cluding the applicant, who is LDC (BPS-07) Pension Section, PCCC, being officials of GOP, Karachi, were entrusted various duties and responsibilities including the monthly payments to the pensioners. Enquiries reveals that the accused persons in connivance with each other used to fill the particulars and entries in the cheques counterfoiles, Cheque register, Cash book in respect of cheques relating to the pensioners by showing lesser/actual amounts and higher amounts on spaces left for addition on the cheques. The cheques in question were got signed/Countersigned by DDO Gul Muhammad and Secretary PCCC, Karachi Pervaiz Ali Ismaili. The amounts on cheques were increased in the manner e.g. in cheque of Rs.6250 accused persons inserted zero e.g. Rs.60250. Thereafter, the excess amount as appearing on cheques were encashed from NBP, PIDC Branch Karachi by accused persons named above and embezzled amounts were distributed amongst all the accused persons. The tampering/manipulation/addition was made in cash cheques only. It is further alleged that instead of arranging the distribution of pension directly from the pensions accounts through proper transfer of government funds in the pensioners account from PCCC official Account No.2695-9 maintained at NBP, PIDC Branch, Karachi under prescribed monthly payment advices along with the cheques during the financial year 2008 and 2009, consecutively arranged and issued cheques in favour of different pensioners and the accused fraudulently got the amount in excess from the above bank account by each month and continuously embezzled the excess amount after distributing the actual pension amounts to the pensioners in cash, pocketed the remaining/excess amount with themselves. It has been further alleged that after making additions in the figures of the (219) cheques amount the accused put their signatures as recipients on the backside of the cheques. The actual amounts were paid to the pensioners and the remaining/excess amounts were retained by the accused persons. Hence the applicant along with others caused wrongful monetary loss to Government exchequer and corresponding wrongful gain to themselves. The name of the applicant has been shown in column 3 (in custody) in interim Charge Sheet No. 16 of 2012 dated 2-6-2012 and in Column 2 names of three accused have been shown underlined with red ink (absconders) and remaining two accused namely Gul Muhammad i.e. Drawing and Disbursing Officer and Pervaiz Ali Ismaili, Director in PCCC, Karachi who was Countersigning Officer have not been sent up for trial without showing any sufficient cause or plausible reason. The earlier application filed before the learned trial Court was culminated in rejection order dated 12-6-2012 hence the instant application has been directed mainly on the grounds that the applicant/accused is innocent and has falsely been implicated by the FIA without realising the fact that he has not committed any offence, particularly he was having no concern for preparing pension cheques, as such no entrustments were made to the applicant/accused hence charged offence is not attracted against him. The signatory of the cheques, who were responsible for the alleged offence are not sent up for trial. That the applicant performed his duty as per instructions of his incharge and that the offence do not fall under the prohibitory clause hence, bail is a right and refusal is exception. Moreso, the prosecution has collected the documentary evidence and the accused is in judicial custody and no more required for further investigation, as such there is no apprehension of tampering of evidence by the applicant/accused. I have heard Mr. Khaleeq Ahmed, Advocate for the applicant and learned D.A.G. for the State with the assistance of Assistant Director, FIA Javed Iqbal, who is present in Court, I have also gone through the police papers including F.I.R., Challan and original cheques, which speak volumes about the mala fide and ulterior motives and conduct of investigating agency which can easily be read in between the lines of the investigation proceedings. By reiterating the grounds of bail, learned counsel for the applicant argued that the applicant is entitled for bail as held in 1996 SCMR 1132. It is asserted that applicant/accused is ready to furnish solvent surety to the satisfaction of trial Court. Learned Deputy Attorney General, on the other side though admitted that the applicant being a low grade employee followed the instruction of officers who handed over him the cheques for encashment and after collecting the cash handed over the same to his officers but contended that the accused is equally involved in embezzlement. When confronted, after showing him the cheques that who was responsible to write the amounts in words on cheques, he candidly admitted that it was the sole responsibility of both signatories who issued the cheques and clarified that only figures have been changed. Such type of contention is having no force, particularly when the cheques available in the police file does not show any change of 'WORDS'. If at all, by adding the figure, the cheque amount have been increased, the amount written in words remained unchanged which was equal to the amount written in figure. The signatories of the cheques were Drawing and Disbursing Officer namely Gul Muhammad, Secretary PCCC (BPS-20) and Pervaiz Ali Ismaili, senior officers those have not been sent up for trial though they were solely responsible of issuing the cheques, without showing reasons of their exonerating by the prosecution) which fact itself is sufficient to prove that the accused being a low grade employee was entrusted the duty to collect the cash has been involved as scapegoat. Under the law of criminal procedure when a case is investigated and after collecting evidence, investigation officer forms opinion that no sufficient evidence is found against let of accused, he is required to act with great care and caution, particularly in case of evaluation of evidence, the Investigation Officer is not at all supposed to arrogate himself the function of adjudication, in order to determine the nature of offence without narrating the reasons and cause. Perusal of the charge sheet transpires that the names of accused Nos. 5 and 6 named at Column 2 have been let of, without any reason which apparently is a result of dishonest, biased and partial investigation. Be that as it may, this is a case of further inquiry falls within the ambit of section 497(2), Cr.P.C, the applicant/ accused is admitted on bail subject to his furnishing surety in the sum of Rs.50,000 and P.R. Bond in the like amount to the satisfaction of trial Court. The order being tentative in nature shall not affect the merits of the case, pending for trial. Above are the reasons of short order announced earlier today while sitting in the Court. MWA/M-79/K Bail granted.