2018 PLP 2567 (YLR)

RAJA SAEED AKRAM KHAN, J.

The captioned revision petition has been filed against the order of the Shariat Appellate Bench of the High Court (hereinafter to be referred as High Court) dated 01.01.2018, whereby the revision petition filed by the accused-petitioners, herein, has been dismissed. This Court vide short order dated 16.02.2018 decided the instant revision petition in the following terms:-- "For the reasons to be recorded later on, this revision petition is accepted in the terms that FIR was loged on 24.03.2017 and on the same day the accused-petitioners were arrested. On the expiry of remand period, the accused-petitioners were sent to Judicial Lockup on 07.04.2017. The challan was presented against the accused-petitioners in the offences under sections 471, 467, 468, 419, 420, 406 and 409, A.P.C. read with section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1985 in Tehsil Court of Criminal Jurisdiction, Hattian Bala on 28.07.2017, but the Court concerned returned the challan with the direction to submit the same before the Court of competent jurisdiction, i.e., Court of Special Judge Anti Corruption. The record shows that since then the accused-petitioners are behind the bars and have not been produced before any Court. The period for which the accused remained in custody without any remand order clearly comes within the purview of illegal detention. Prima facie, all this has been done due to the negligent and defective investigation on the part of the investigating team who tried to smash the case for the reasons known to them. It is also depicted from the record that even after lapse of a considerable time the police authorities have yet not been determined that which of the investigating agencies shall investigate into the guilt of the accused. The learned Advocate-General during the course of hearing of case submitted that now forum of investigation has been determined and the matter is going to be referred to the Ehtesab Bureau. In such state of affairs, due to the neglectful conduct of the police authorities the accused-petitioners cannot be kept behind the bars for an indefinite period as the process of the commencement of investigation may take some time, therefore, while accepting the revision petition the accused-petitioners are admitted to bail. They shall be released from the custody subject to furnishing of bail bonds in the sum of Rs.50,00,000/- each, consisting of two sureties each as well as the personal bonds in the like amount to the satisfication of any Magistrate First Class. However, this conclusion is conditional, if the concerned investigating agency, Ehtesab Bureau, on the basis of legal evidence finds the accused disentitled for bail, may approach this Court for cancellation. Before parting with the order, the Inspector General Police is directed to hold an inquiry by appointing some honest officers against the concerned police officials seized with the investigation who have committed the serious lapses, while suspending them from service. The officials who found indulged in the lapses in investigation shall be proceeded against under law and in this regard the detailed report shall also be submitted before this Court through Registrar within a period of two months. We may also observe here that in a number of cases this Court issued the directions to look into the conduct of the officials who committed lapses during investigations but no proper action has been taken rather the inquiries are disposed of in cursory manners. This practice cannot be approved at all and if the same is repeated this Court will constrain to inquire the matters by some judicial officers." The detailed order is as under:--

2. The gist of the facts is that Assistant Commissioner, Hattian Bala lodged a complaint at Police Station, Hattian Bala on 24.03.2017, that one Tariq Riaz, Junior Clerk was transferred from the office of Assistant Commissioner/Collector Land Acquisition, Hattian Bala to the office of Extra Assistant Commissioner, Jehlum Valley, vide order dated 27.09.2016, who did not hand over the record of the office pertaining to the land acquisition matters despite passage of several months. Through a letter No.4793-95 dated 27.12.2016, he was directed by the Deputy Commissioner, Jehlum Valley, to hand over the record within 15 days but he did not comply with the direction. In the meantime, on suspicion of huge embezzlement in the amounts of land acquisition pertaining to years 2004 to 2016, on the direction of the Additional Commissioner Board of Revenue, Muzaffarabad the inquiry was conducted against the said clerk. The accused neither appeared before the inquiry officer nor provided the relevant record to him. On 24.03.2017, it came to know that the computer in which the whole data was saved has also been stolen on 23.02.2017. It was also found that many cheques of huge amounts have been issued in the name of one of the accused-petitioners and the amount has been released from the bank. On this complaint, a case in the offences under sections 471, 467, 468, 419, 420, 406 and 409, A.P.C. read with section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1985 was registered against the accused-petitioners. The accused-petitioners were arrested by the Police. After the submission of challan, the accused-petitioners filed an application for bail after arrest in Tehsil Court of Criminal Jurisdiction, Jehlum Valley which was rejected vide order dated 15.08.2017. The accused filed second bail application in the District Court of Criminal Jurisdiction, Jehlum Valley, which was also rejected vide order dated 24.08.2017. The accused-petitioners filed a revision petition before the learned High Court which met the same fate vide impugned order dated 01.01.2018, hence, this revision petition.

3. Kh. Attaullah Chak, Advocate, the learned counsel for the accused-petitioners argued that the impugned order passed by the High Court is against law and the facts of the case which is not sustainable in the eye of law. He contended that the learned High Court has not exercised the discretion in a judicious manner while passing the impugned order. He contended that the petitioners have been roped in a false case. He added that in the case in hand, forged recovery has been made just to strengthen the case. The petitioners are behind the bars for the last more than 10 months and they have not been produced before any Court for judicial remand and such act safely comes within the definition of illegal confinement which is not warranted under law. He contended that the liberty of a person is always paramount consideration of the Courts and nobody can be kept in jail without order of any Court of law. He argued that many other officials have been alleged to have been involved in the embezzlement but in spite of the direction issued by the High Court neither anyone has been associated with the investigation nor any action has been taken by the investigating agency against them. In continuation of the arguments, he submitted that a considerable time has been elapsed but it has not been decided as yet that which forum is competent to investigate the matter. He contended that section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1985 is not attracted in the instant case as the accused persons are the public servants and only forum which is competent to investigate the matter is Ehtesab Bureau but all these aspects escaped the notice of the High Court while passing the impugned order. He drew the attention of this Court towards an order passed by the High Court and submitted that the learned High Court ordered to keep the petitioners in jail for an indefinite period and has not issued any such direction to produce them before the Court of competent jurisdiction within the stipulated period provided under law.

4. On the other hand, Mr. Raza Ali Khan, the learned Advocate-General strongly opposed the arguments advanced by the learned counsel for the accused-petitioners. He submitted that the accused-petitioners are involved in the embezzlement of a huge amount and during the course of investigation, the recovery has also been made from the accused-petitioners which is a sufficient proof to connect them with the commission of offence. When the learned Advocate General was confronted regarding the mode of investigation and attraction of section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1985, he submitted that although there are serious lapses on the part of investigating agency, however, the investigating officer on 12.01.2018, has deleted the aforesaid section on the ground that keeping in view the circumstances of the case this section does not attract and also submitted that now the forum of investigation has been determined in the light of the dictum laid down by this Court in a case reported as Muhammad Liaqat Sulehria v. S.H.O. City Muzaffarabad and 6 others 2016 PCr.LJ 441 and the matter is going to be referred to the Ehtesab Bureau. The learned Chairman Ehtesab Bureau will take the decision to investigate the matter itself or transfer the same to the Anti Corruption Department.

5. We have heard the arguments and gone through the record along with the impugned order. The allegation levelled against the accused-petitioners is that they embezzled a huge amount from the Government exchequer and also stolen the official record as well as computer in which the necessary data was saved. The perusal of the record shows that on the complaint of Assistant Commissioner, Hattian Bala, a case in the offences under sections 471, 467, 468, 419, 420, 406 and 409 A.P.C., read with section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1985, was registered against the accused-petitioners and during the investi-gation an amount of Rs. 1,00,05,000/- (one crore five lac)(sic), the relevant record and computer etc., were recovered from the accused-petitioners. It may be observed here that the recovery of such a huge amount cannot be planted by the police just to strengthen the case registered against the accused-petitioners, thus, the argument of the learned counsel for the accused-petitioners in this regard has no substance. Although, the alleged recovery prime facie connects the accused with the commission of offence, however, during the course of hearing, serious lapses on the part of investigating team came on the surface which cannot be ignored lightly. The accused-petitioners were arrested on 24.03.2017 and on 27.03.2017, the Investigating Officer, Waheed All Gillani, DSP Headquarter, opined that the accused are the Government Servants who have been found involved in the commission of embezzlement and the relevant forums to investigate the matter are the Anti Corruption Department or Ehtesab Bureau. The relevant portion of daily dairy dated 27.03.2017, reads as under:-- Thereafter, the record shows that the accused-petitioners remained under investigation of the local police for a longtime and no step was ever taken by the investigating agency in this regard. On 15.07.2017, after a considerable period, one of the investigating officers, Ansar Sajjad Khan, S.H.O. Police Station, Hattian Bala, also opined that in view of the facts of the case, section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1985, prima facie does not attract and the matter pertains to the Anti Corruption Department as the investigation by the local police is not only impossible but also against the rules. The relevant findings recorded in this regard in the daily dairy are reproduced here which read as under:

Astonishingly, despite recording the findings (supra) that section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1985, does not attract and the matter pertains to the Anti Corruption Department instead of deleting the said section and transmitting the matter immediately to the concerned forum, the local police on 28.07.2017, himself presented the challan against the accused-petitioners in Tehsil Court of Criminal Jurisdiction Jehlum Valley. It appears from the record that when Tehsil Court of Criminal Jurisdiction, vide its order dated 28.07.2017, returned the challan to the police with the direction to present the same before the Court of competent jurisdiction, i.e., Court of Special Judge Anti Corruption; at that time, under the provisions of section 344, Cr.P.C., the police had to obtain the remand order from the Court/Magistrate to keep the accused-petitioners in custody, but no such legal formality was fulfilled. On 19.09.2017, the Additional Advocate General along with some police officials appeared before the High Court and submitted that the challan before the Anti Corruption Court will be submitted; necessary steps in this regard are being taken, and made a request to pass an appropriate order for custody of the accused. The learned High Court passed an order that till submission of challan before Anti-Corruption Court, the accused shall be kept in judicial lockup. After obtaining the aforesaid order the investigating agency have not initiated any further step and even has not decided that as to which of the forums is competent to investigate the matter. The Investigating Agency, i.e. police has misconstrued the spirit of the order passed by the High Court, whereby, the accused were sent to the judicial lockup on the request of the Investigating Agency that the challan in the case shall be presented into the Court of competent jurisdiction but the authorities has not presented the challan and kept the accused behind the bars for an indefinite period against the statutory provisions of law. Now the learned Advocate-General during the course of arguments, at this belated staged, submitted that the forum of investigation has been determined and the matter is being referred to the Ehtesab Bureau. The period for which the accused remained in custody without getting remand order from any Court clearly comes within the purview of illegal detention. In view of the nature of the case as the accused remained behind the bars, the police had to transfer the matter immediately to the concerned forum but the police authorities failed to discharge the legal obligations and kept the matter pending for a longtime without any valid reason. The police functionaries cannot justify such negligence. From the record of the case, prima facie it appears that the Investigating team kept the matter pending for a considerable period with mala fide intention just to give the benefit to the accused-petitioners. It also reveals from the record that very defective/poor investigation has been conducted by the Investigating Officer who otherwise in the instant case as per his own version was not competent to investigate the matter. In such state of affairs, although prima facie the recovery of embezzled amount connects the accused with the commission of offence, but they cannot be kept in jail for an indefinite period due to the negligence on the part of the investigating agency. The damage caused to the accused-petitioners due to the illegal confinement/negligence of the local police, cannot be cured or converted into a legal detention and in view of the matter no option was left with the Court except to release the accused-petitioners on bail. As per statement of the learned Advocate-General now the authority has decided to refer the matter to the Ehtesab Bureau for investigation. If the matter is sent for investigation to the Ehtesab Bureau, the Chairman Ehtesab Bureau shall take up the matter on priority basis and conclude the same expeditiously while keeping in mind the guidelines given by this Court in the case reported as Muhammad Razzaq v. Ehtesab Bureau and others [2017 SCR 328]. It may also be observed here that the sole responsibility for inquiry into an investigation of the offence alleged to have been committed rests on the Ehtesab Bureau to the exclusion of any other agency or authority unless any such agency or authority is required to do so by the Chairman Ehtesab Bureau as is envisaged under section 21(4) of Ehtesab Bureau Act, 2001. Meaning thereby, that the Chairman Ehtesab Bureau if deems it proper to get the investigation of an offence by any other agency or authority regarding schedule offences he may do so under his supervision. This practice is not prevailing at present, however, the statutory provision authorizes the Chairman Ehtesab Bureau to adopt such procedure if the same is adopted the load of work in the department of Ehtesab Bueau may be decreased. The aforesaid are the circumstances/reasons on the basis of which the concession of bail was granted to the accused-petitioners vide short order dated 16.02.2018. HBT/16/SC(AJ&K) Bail granted.