P L D 1983 Lahore 155_ (PLP)

This order will dispose of two bail applications, one on behalf of Hafiz Abdul Latif AFC, Bini Shell, Bahawalpur (Crl. Misc. No. 520-B-82/BWP) and the other by Saleem Raza and Muhammad Akhtar, Foodgrain Supervisors (Crl. Misc. No. 529-B-82/BWP).

2. The procedure of Food Department at the time of wheat procurement drive of 1981-82 was that purchase centres were set up at different places in Bahawalpur District and wheat was purchased at these centres and sent to Bini Shell godown at Yazman Road, Bahawalpur. On delivery of wheat, the incharge of purchase centre prepared a receipt-cum-bill for the wheat purchased and handed over the same to seller/grower who on presentation of the same to any of the Banks with which Food Department had arrangements, was paid by the Bank the price of wheat sold by him.

3. According to the prosecution, the charges againat the petitioners are that Muhammad Akhtar Foodgrain Supervisor, who was incharge of Israni Purchase Centre, without receiving 857 bags of wheat, prepared a bill-cum receipt of said wheat bags on 18-5-1981. in the name of one Abdul Hamid through Sleem Raza and handed over the same `to said Foodgrain Supervisor, Saleem Raza (incbarge of another purchase centre) who got payment of total amount of Rs. 1,18,823.05 from the Habib Bank, Khairpur Tamiwali as the price of said bags and got the same deposited in his personal account in the same bank. Thereafter Saleem Raza issued two cheques, one in the name of one Muhammad Hanif for Rs. 1,17,852 on 18-8-1981 and the other in the name of one Abdul Khaliq for a sum of Rs. 500 on 22-8-1981 and left the remaining sum in his own account. Both these cheques were bearer cheques. Saleem Raza as bearer of said cheques again received the said sum from the bank and signed on the reverse of the said cheques in token of his having received the aforesaid amounts.

4. In regard to Hafiz Abdul Latif the prosecution case is that he as incharge of Bini Shell, acknowledged receipt of said 857 bags of wheat on nine fictitious Purchis Rahdari without receiving any wheat.

5. As against this, the defence of the petitioners during the investigation is that acts attributed to petitioners were mere irregularities without any mens rea in them and 'the aforesaid quantity of wheat had actually been transported to the Bini Shell and stored in the said godown and if an account is taken of the total wheat stored in the said godown, aforesaid quantity of wheat would be found to have actually been sent to and stored in the Bini Shell in question.

6. I have questioned the investigation officer on that aspect of the matter. According to him Bini Shell contains approximately 2,500 tons of wheat and small quantities of wheat are withdrawn from there at intervals and it is not possible at this stage to weigh the entire wheat stored in the said godown in order to check the correctness or otherwise of the defence plea of the petitioners. He further states that this cannot be done until the entire wheat had been issued by the Government and the total amount stored in this godown comes to light and that this would take a lot of time.

7. Since at this stage it is not possible for the investigating officer to, check the correctness or otherwise of the said defence plea of the petitioner it cannot be conclusively said on the present record. that the petitioners had committed the offences with which they stand charged. Possibility of their innocence cannot, at this stage, be definitely ruled out. Their case needs further enquiry and clearly falls within the purview of subsection (2 of section 497, Cr. P. C. They are, therefore, entitled to the grant of bail.

8. In view of the above I grant bail to Hafiz Abdul Latif and Muhammad Akhtar each in the sum of Rs. 10,000 with two sureties each in the like amount to the satisfaction of A. C./Duty Magistrate, Bahawalpur.

9. So far as petitioner Saleem Raza is concerned, since he is alleged to have received a sum of Rs. 1,18,823.05 from the bank, he is granted bail in sum of Rs. 50,000 (rupees fifty thousand) with two sureties each in the like amount to the satisfaction of A. C./Duty Magistrate, Bahawalpur. However relying on the case of Zafar 1qbal v. State (1976SCMR126). I direct that this grant of bail to him would be subject to the condition that be either deposits the said sum of Rs. 1,18,823.05 in cash with the Food Department which will be refunded to him in case he is found innocent or furnishes a bank guarantee for the payment of said amount to the Food Department in case the said amount is finally found to be due from him. s. A. H. Bail allowed.