2016 PLP 1475 (MLD)
AZMATULLAH KOLACHI — Applicant Versus The STATE — Respondent
| Citation | 2016 PLP 1475 (MLD) |
| Forum / Court | Sindh Sukkur (Bench) |
| Bench Members | N/A |
| Parties | AZMATULLAH KOLACHI — Applicant Versus The STATE — Respondent |
| Primary Law | (b) Criminal Procedure Code (V of 1898), (a) Criminal Procedure Code (V of 1898) |
Q1: What are the key laws and sections cited in 2016 PLP 1475 (MLD)?
This judgment primarily cites: (b) Criminal Procedure Code (V of 1898), (a) Criminal Procedure Code (V of 1898) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2016 PLP 1475 (MLD)?
The case was heard and decided by the Sindh Sukkur (Bench) bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2016 PLP 1475 (MLD) (AZMATULLAH KOLACHI — Applicant Versus The STATE — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Headnotes / Summary
S. 497 (2)
Penal Code (XLV of 1860), Ss. 409, 465, 468, 471, 477-A & 34
Prevention of Corruption Act (II of 1947), S. 5 (2)
Criminal breach of trust by public servant, by banker, merchant or agent; forgery; forgery for purpose of cheating; using as genuine a forged document; falsification of accounts; common intention
Main culprit not implicated
Accused persons were alleged to have misappropriated public funds allocated for a public sector development program
Available record, showed that the accused was posted at some other place on his transfer at the time of commission of offence, which required serious consideration
Record revealed that total amount allocated to the development project and the amount alleged misappropriated were different
Main culprit/XEN Irrigation, who was the competent authority to approve the cases for the payments in question, under whose directions the cheques had been prepared, and who had signed the cheques, had not been implicated in the present case
Accused persons were neither in commanding position in the office, nor had they issued any cheques nor were they signatory to the same, whereby the Government funds had been allegedly misappropriated
Prosecution's entire case depended upon documentary evidence, which had already been collected during the investigation and the same was in custody of the prosecution; therefore, no apprehension of tampering with the evidence existed
Allegations leveled against the accused did not fall within the restraining clause of S. 497, Cr.P.C
Challan had already been submitted
State counsel had no objection to the grant of bail
Bail applications were allowed accordingly.
S. 497
Court, while dealing with the question of bail, has to consider the minimum quantum of sentence provided for the alleged offence.
Judgment & Decree
SHAHNAWAZ TARIQ, J.
By this common order, I intend to dispose of Criminal Bail Applications Nos. 886 and 887 of 2015, filed by applicants Azmatullah, Muhammad Sachal and Mir Muhammad for their enlargement on post arrest bail respectively, arising out of Crime No.GO-22 of 2015 lodged at P.S. ACE, Ghotki, under section 409, 465, 468, 471, 477-A, 34, P.P.C. R/W 5(ii)) Act-II, 1947, as their earlier bail application was dismissed by the Court of learned Special Jude Anti-Corruption, Sukkur vide order dated 09.11.2015.
2. Relevant facts narrated in FIR are that applicants along with other officials have allegedly mis-appropriated Government amounts worth Rs.53,62,980/- and Rs,2,00,000,00/-, in the year 2011-12, allocated for Public Sector Development Program, 2011-12; hence instant FIR.
3. Alam Sher Bozdar, learned counsel for applicant Azmatullah Kolachi contended that applicant is innocent and has been falsely implicated in instant case, as he was not posted during the period of alleged offence in the office of Mirpur Mathelo Division nor was holding such charge, but he was posted as Accounts Clerk vide Office order dated 09.03.2011 and Ghulam Yasin was transferred and posted in Mirpur Mathelo Division vice versa; that during the investigation no iota of evidence has been brought on record against the applicant by the Investigating Officer to connect him with the commission of alleged offence, with which he is charged.
4. Zulfiqar Ali Naich, learned counsel for applicants contended that applicant Mir Muhammad was posted as Tender Clerk in Mirpur Mathelo Division, while applicant Muhammad Sachal was posted as AEN, Sub-Division, Daharki and neither applicants had issued any cheque nor they had any access to relevant record of the office; that XEN Waqar Qadri issued cheques for Rs.53,62,890/- and said amount was re-deposited in Govt Treasury and such fact has also been mentioned in investigation by ACE; that in the financial year 20112012, an amount of Rs.50,00,000/- was released for said project, hence allegations of release of Rs.2,00,000,00/- have no legal substance.
5. Learned APG considering the material available on record, extended no objection for grant of bail to all the applicants. However, Investigating Officer Mukhtiar Hussain Lashari, Circle Officer, candidly submitted that no direct evidence has been collected against present applicants and investigations against the main accused Waqar Qadri, XEN, Irrigation Mirpur Mathelo Division, are under process and final Challan will be submitted subsequently.
6. Heard the arguments of learned counsel for the parties and perused the material available on record, which emanate that applicants have been apprehended in connection with mis-appropriation of Govt. funds amounting to Rs.53,62,980/- and Rs.2,00,000,00/1 allocated for Public Sector Development Program 2011-1 2012. Indeed, applicant Azmattullah has controverted his posting during the period of commission of the alleged offence and he has produced copy of office order dated 09.03.2011, issued by Director, Ghotki Feeder Canal Area Water Board, Ghotki, that he was posted as Accounts Clerk, and Ghulam Yasin was transferred and posted in Irrigation Mirpur Mathelo Divison, against him vice versa and such fact is also admitted by Investigating Officer, which requires serious consideration.
7. From the perusal of letter dated 03.04.2012 issued by Director Ghotki Feeder Cannal and Water Board Ghotki to Executive Engineer, Mirpur Division (Irrigation) at Mirpur Mathelo reflects that total amount of Rs.50,00,000/- was allocated for the year 2011-12 and out which an amount of Rs.25,00,000/- was released by the concerned authority, hence the allegations regarding mis-appropriation of Rs.2,00,000,00/- by the applicants also requires serious consideration.
8. Learned counsel referred to Page-45 of the file, which is letter dated 21.01.2013, issued by Inspector, E & ACE Sindh, Karachi to P.S.O to Chairman E & ACE, Sindh, Karachi, wherein it is mentioned that an amount of Rs.53,62,980/- was drawn from Security Deposit Head on 22.05.2012 and same was again deposited in Government Treasury on 28.05.2012, within the period of 6 days. Astonishingly, still the prosecution has not been able to implicate the main accused Waqar Qadri, XEN, Irrigation Mirpur Mathelo Division, who being the competent authority approved the cases for the alleged payments and under his directions cheques were prepared which were signed by him, and despite above facts, his name is not mentioned in Interim Challan under garb of a letter dated 26.10.2015, issued by Director, Anti-Corruption Establishment, Sindh, Karachi' with reference to the decision given by ACC-1 in its meeting dated 06.10.2015.
9. Indeed, applicants were neither in commanding position in the office of Irrigation Mirpur Mathelo Division nor they issued any cheques nor they were signatory of the cheques whereby the Govt. funds were allegedly mis-appropriated. Prosecution's entire case depends upon the documentary evidence, which has already been collected during the investigation and same is in the custody o prosecution, and no relevant record has been place before this Court regarding their involvement in commission of alleged offence, hence there is no apprehension of tampering with prosecution evidence, and it is for the learned trial Court to record evidence an ascertain truth. Reliance is placed on the case of Saee Ahmed v. The State (1996 SCMR 1132). As such allegations leveled against the applicants do not fall within the restraining clause of Section 497, Cr.P.C. A present Interim Challan has been submitted an applicants are no more required further for investigation and their further detention will not serve any useful purpose. It is well established that while dealing with the question of bail, the Court has to consider the aspect o minimum quantum of sentence provided for the alleged offence in the schedule.
10. Considering the above circumstances, applicants have succeeded to make out a case of further enquiry as envisaged under Section 497(2), Cr.P.C. Consequently, applicants are admitted to post arrest bail subject to their furnishing solvent surety in the sum of Rs.100,000/- each and P.R Bond in the like amount to the satisfaction of the learned trial Court.
11. The observation made supra are tentative in nature and learned trial Court shall decide the case strictly on merits. SL/A-11/Sindh Bail allowed.