2019 PLP 111 (YLRN)

MUHAMMAD SALEEM JEESAR, J.

By this common order, I propose to dispose of all captioned bail applications together, as all are arisen out of one and same crime, therefore, common question of law and facts are involved.

2. Through applications bearing Cr.B.As. Nos.S-128 and 226 of 2019, Applicants Mst. Sarwat Khatoon and Muhammad Mahmood Qureshi, respectively, seek their admission on pre-arrest bail in Crime No.04/2019, registered at Police Station ACE Hyderabad, under sections 420, 465, 468, 477(A), 409, 34, P.P.C. read with section 5(2) of Prevention of Corruption Act-II, 1947; whereas Applicants Inamullah Bhatti and Gul Muhammad through Cr.B.As. Nos.S-217 and 218 of 2019, respectively, seek their release on post-arrest bail in same crime.

3. Earlier, the bail plea(s) preferred by the Applicant(s) before the trial Court viz Court of Special Judge, Anti-Corruption (Provincial) Hyderabad have been declined by means of orders dated 31.01.2019 and 18.02.2019, respectively.

4. The crux of prosecution case as unfolded in the FIR, registered on the complaint of complainant Shaukat Ali on 24.01.2019 at Police Station ACE Hyderabad, are as under:-- "That the present case is being registered against above named accused persons on the application of Shoukat on the approval of competent Authority Deputy Commissioner Hyderabad/ Chairman ACC-II in his meeting held on 11.12.2018 and 14.12.2018, such order received through DD, ACE, Hyderabad vide No.ACH/2018/R/36 dated 03.01.2019 as a result of enquiry conducted into compliant No.75/2014 of ACE, Hyderabad. It has been alleged by the complainant that a clerk Gul Muhammad Chandio of Girls Section Public School Hyderabad collects fee from students in cash by issuing handmade challan despite computerized challan and by this way he tempers the figure of amount of students copy of pay slip, as example a girl student of class XII Gul M. Chandio collected Rs.6300/- and deposited Rs. 1260/- in the school account in ABL by tempering amount Rs.6300/- (a copy of tempered slip attached) as soon as this fraud was discovered-fee challans were cross checked with the bank daily statement and more case of this nature were found. That on parents complaint an enquiry was conducted against Gul M. Chandio, Clerk in which he found guilty as he embezzled amount of Rs.4,44,870/- during year 2010-2011. Complainant further alleged that record of payments given by the Boarders is not being maintained properly as huge outstanding amount is pending over boarding students who had used boarding facilities and left school without clearing their dues, as example in Tippu House the House Mistress Ms. Sarwat Qureshi collects lacs of rupees from boarding students but did not deposit it into school account which caused huge loss to school. Mst. Rubina Pandhiani is a witness of this matter. He further alleged that there are several probed cases of frauds in school that during enquiry by school management Mr. Inam Bhatti (store keeper) Mehmood Qureshi (store office incharge), Farhan Lodhi (store office incharge) found guilty as he embezzled amount of Rs.2,24,572/- during purchasing school items in the year from 2006 to 2009 but enquiry report have been pushed under the carpet by the head of Institution. Apart from above mentioned cases many more avenues of corruption can be found."

5. Learned counsel for Applicants have argued their respective bail application(s) in the terms that allegation of embezzlement of certain amounts has been shown by the complainant in his FIR and even the complainant himself being a corrupt official has been terminated from his service vide order of the Commissioner Hyderabad/Chairman Board of Governors, Public School Hyderabad dated 02.12.2000 (available as Annexure-D at page-37 of Court file in Cr. B.A. No. S-128/2019). Learned counsel further submit that Applicant Mst. Sarwat. Khatoon has been working in the School as House Mistress and was not assigned any job to collect the fee or any charges from the students, even no specific amount has been shown to have allegedly been embezzled by her. They next submit that Applicants Inamullah Bhatti, Mehmood Qureshi and co-accused Farhan Ahmed have been alleged to have embezzled Rs.2,24,572/- jointly yet, co-accused Farhan Lodhi has been granted bail by the trial Court, therefore, submit that law of propriety demands that constant treatment should be extended in favour of the Applicants. They further submit that the offence with which the Applicants have been charged, if proved by the prosecution, does not carry maximum punishment except section 409, P.P.C., which is yet to be proved by the prosecution at the time of trial. They also submit that all the Applicants being employees of the school cannot tamper with the prosecution evidence and/or may not abscond away; besides, entire prosecution case/evidence is based upon the documents, which are in custody of the prosecution itself, therefore, case of the Applicants require further inquiry. In support of their contention, they placed reliance on the case of Nazar Muhammad v. The State (2003 PCr.LJ 175).

6. Conversely, learned D.P.G. opposes the bail applications on the ground that all the Applicants are nominated in the FIR with specific role; besides, embezzlement of huge amount allegedly charged by them from the students is shown. As far as case of co-accused Farhan Lodhi is concerned, no material was collected by the prosecution against him, therefore, he has been granted bail by the trial Court; thus this ground may not support the contention of learned counsel for the Applicants. He, therefore, prays for dismissal of instant bail applications.

7. I have heard the learned counsel for the parties and perused the material made available before me on record with their able assistance.

8. Admittedly, the offence as shown pertains to the years 2006-2009 and 2010-2011; however, no specific date has been mentioned in the FIR; besides, it is delayed for about 13 years and even then the prosecution did not collect any tangible evidence against any of the Applicants. Perusal of record shows that FIR was lodged on 24.01.2019, more than three months have passed; however, the final challan has not been submitted by the prosecution. Admittedly, entire prosecution case is based upon the documentary evidence, which is in custody of the prosecution itself, therefore, the question of its tampering or absconding of the accused/Applicants does not arise. In this context reliance is placed on the case of Saeed Ahmed v. The State (1996 SCMR 1132). Further, the offence with which the Applicants have been charged carries maximum punishment upto 07 years except section 409, P.P.C., which is yet to be proved by the prosecution after recording the evidence. The contention of learned D.P.G. that some of the embezzled amount has been recovered from some of the Applicants, therefore, such is the admission of alleged offence on their part, carries no weight on the ground that it was the outcome of inquiry proceedings and as far as instant case is concerned, it requires evidence which is yet to be recorded by the trial Court. It has never been shown by the prosecution that the amount allegedly embezzled by the Applicants was utilized by them for their personal use/ benefit, even such aspect of the case is also yet to be proved by the prosecution itself, therefore, application of section 409, P.P.C. lacks its basic ingredients and is yet to be proved by the prosecution at the time of trial. In the interim challan I.O. specifically mentioned that complainant has not cooperated with them for recoding his further statement with regard to the progress of investigation and co-accused Farhan Lodhi has been bailed out on identical role, therefore, rule of propriety demands that Applicants should also be extended constant treatment. In view of the dictum laid down by the Honourable Supreme Court of Pakistan in the cases of Tarique Bashir and others v. The State (PLD 1995 SC 34) and Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733), the case of Applicants requires further inquiry as envisaged under subsection (2) of section 497 Cr.P.C. Consequently, all these applications are allowed. The interim pre-arrest bail, earlier granted to the applicant Mst. Sarwat Khatoon in Cr.B.A. No.S-128/2019 and Applicant Muhammad Mehmood Qureshi in Cr.B.A. No.IS-226/2019 vide orders dated 04.02.2019 and 01.03.2019 respectively, are hereby confirmed on same terms and conditions. While Applicants Inamullah Bhatti in Cr.B.A. No.S-217/2019 and Gul Muhammad in Cr.B.A. No.S-218/2019, who are in custody, are hereby granted post-arrest bail subject to furnishing their solvent surety in the sum of Rs.100,000/- (Rupees one hundred thousand) each and P.R. Bond in the like amount to the satisfaction of the trial Court.

9. All captioned bail applications stand disposed of.

10. Applicants (including Applicants Inamullah and Gul Muhammad after releasing on bail) are directed to join the trial Court without fail. In case, of misuse of such concession, the trial Court would be at liberty to pass any appropriate order including the order in terms of section 514, Cr.P.C.

11. Needless to mention that the observation made hereinabove are tentative in nature and will not cause any prejudice to either party at the trial. SA/I-22/Sindh Bail granted.