1997 P Cr (PLP)

12. Finally he could prevail over the Board of Trustee and other officials to cover up the illegal acts by allotting them various size of plots in K.P.T. and withdrew Civil Suit No.240 of 1994 from the High Court and as such the land in question actually valued at Rs.3000.000 million was sold out at a price of Rs.204.977 million and as such huge loss was caused to Government exchequer and corresponding gain to the parties and to themselves. In view of the foregoing series of acts or record, it is established beyond doubt that the accused persons namely R.Adm. (Retd.) Akbar H. Khanand and others by defying the settled rules and regulations wilfully and deliberately, having common object and intention abused the official position as public servant and by doing so they with a mala fide intention acted in such a manner which resulted into substantial loss to the public exchequer and corresponding pecuniary advantages to themselves and thereby committed offences punishable under sections 409, 109, P.P.C. read with section 5(2), Act II of 1947." During investigation accused/applicant Abdullah Shah was taken by F.I.A. from his residence on 18-12-1996, on the pretext of recording his evidence in a criminal case, which was being investigated against Wajid Shamsul Hasan, former High Commissioner of Pakistan in U.K. The applicant was already granted pre-arrest bail in the same case by the Honourable Chief Justice on 14-12-1996. On arrival at F.I.A. CC-I, Karachi Police Station, the applicant was informed that he was under arrest in Crime No. 14 of 1996. Application for bail, on behalf of the accused/applicant was moved before, the learned Special Judge (Central). Karachi, but the same was rejected by him on 22-12-1996, with the following observations:-- "As regards the bail application of accused Abdullah Shah, his Advocate Mr. Azizullah Shaikh argued at length. Syed Israr Ali, AD(Legal) for the State at the time of his arguments said that accused Abdullah Shah is not being challaned in this Court and his case will be challaned before the Provincial Anti-Corruption Court, therefore, this Court has no jurisdiction in the matter. Looking to this situation that this Court has no jurisdiction in the matter and the case of accused Abdullah Shah would be taken to the Court of Provincial Anti Corruption, his bail application is dismissed having no jurisdiction to this Court. Thereafter the application has approached this court for bail. Mr. Aziaullah K. Shaikh, learned counsel for the accused/applicant has contended that accused/applicant was granted bail before arrest by the Honourable Chief Justice in F.I.R. No.13 of 1996 in Criminal Bail N0.2024 of 1996, lodged by the F.I.A. on 28-11-1996, in F.I.R. No.74 of 1996 in Criminal Bail No.2135 of 1996 on 11-12-1996 and pre-arrest bail by my learned brother Kamal Mansoor Alam, J. in Mir Murtaza Bhutto's case, being Criminal. Bail No.2019 of 1996 on 8-11-1996; that name of the accused/applicant is not mentioned in the F.I.R., bearing No.13 of 1996, lodged by the F.I.A., that interim charge sheet for the same crime was submitted on 15-12-1996 wherein name of the accused/applicant Abdullah Shah is not mentioned; that 161, Cr.P.C. statements of five P.Ws. were recorded but none of the P.Ws. has implicated the accused/applicant Abdullah Shah; that case against the accused/applicant has been foisted due to political reasons and he has been victimised due to political difference with the Government of the days; that whatever evidence against the accused/applicant is available, that is documentary in nature, which is purported to be summary, approved by the accused/applicant on 10-1-1996 and submitted for approval by the Secretary to Government of Sindh, Land Utilization Department. Mr. Azizullah K. Shaikh, learned counsel for the applicant has referred the following case law:-- (1) Unreported judgment passed in Criminal Miscellaneous 248 of 1991, delivered by Qaisar Ahmad Hamidi, a celebrated Judge, in a case initiated against Syed Qaim Ali Shah, former Chief Minister of the Province of Sindh, who was alleged to have dishonestly disposed of 37 acres of land, situated in Gulistan-e-Jauhar, Karachi, to different builders at the instance of co-accused Asif Ali Zardari at a nominal price, thereby causing pecuniary advantages to the purchaser and causing huge pecuniary loss to the Government of Sindh. The learned Judge was pleased to allow the application and quash the proceedings, observing that "to allow the case to proceed would be to allow to mock trial to proceed, with no purpose". (2) Case of Brig. (Retd.) Sahib Dad Khan v. The State 1977 PCr.LJ

676. The dictum of this authority is as under:-- "Petitioner, an Ex-Minister of Provincial Cabinet, accused of embezzling funds earmarked for Punjab Peoples Festival and other malpractices-Allegations, however, relating to rendition of accounts and scrutiny of various documents from Government Department, requiring a good deal of time and entailing lengthy investigation--Bail ad interim confirmed." (3) Case of Ijaz Akhtar v. The State 1978 SCMR

64. In this authority the learned Judge has held as under:-- "Fact of amount allegedly embezzled by accused being large--By itself held no ground for refusing bail; --Apprehension that accused might tamper with evidence if enlarged on ball also, held further, no ground for refusal of bail

State could in such eventuality prosecute its remedies in Sessions Court." (4) Case of Abdul Hay-uz-Zafar v. The State 1983 PCr.LJ 2010. The learned Judge in this authority has observed as follows:-- "That the amount involved is of course sufficiently large and this fact by itself would be no ground for refusing bail particularly when the investigation is complete, except that the report of the handwriting expert is awaited. There is some force in the contention of the learned counsel that the proposed evidence to be adduced at the trial comprised documentary evidence and tampering with the same is not possible. As far as the question of prohibition contained in subsection (1) of section 497 is concerned, a Court is not supposed to keep in view only the maximum sentence provided under relevant law rather it is to be seen what punishment is likely to be awarded ultimately to an accused in particular circumstances of the case. To grant the bail is rule and to refuse is an exception. The petitioner is admittedly a public servant and there is no likelihood of his abscondence." (5) Case of Raza Muhammad Sial v. The State 1988 SCMR 1223. Dictum of this authority is as follows:-- Petitioner charged with misappropriating Government wheat valued at about Rs.87 lacs

High Court refusing to grant him pre-arrest ball-- Prosecution witnesses hardly implicating petitioner

Evidence requiring further inquiry in order to connect petitioner with the crime. Pre-arrest bail to the applicant was granted." (6) Case of Saeed Ahmed v. The State 1995 SCMR

170. The rule laid down in this authority is as follows:-- "Case entirely depended upon documentary evidence which was in possession of the prosecution and no possibility of tampering with such evidence existed

Bail was granted. Mr. Syed Tariq Ali, learned Standing Counsel for the State had contended that 13 Acres of State land has been allotted below the market value of the land; that organized method has been adopted to put heavy loss to the Government exchequer; that public property has been disposed of at a very throwaway price; that the entire hurglary was committed at the behest of the accused/applicant; that the Government functionaries have acted for help of the highups; that provisions of section 409/109, P.P.C. are fully attracted in the case and that the application may be dismissed. I have gone through the material placed with the case. Admittedly the accused/applicant was granted pre-arrest bail by this Court in various crimes. Name of the accused/applicant does not appear in the F.I.R. The interim charge sheet, submitted by the prosecution, does not show the name of the accused/ applicant. That the statement of the learned defence counsel, that 161, Cr.P.C. statements of five P.Ws. were recorded but none of them has implicated the accused/applicant, has not been controverted by the State Counsel. Before the Special Judge (Central), Karachi it was stated by Syed Israr Ali, A.D.(Legal) for the State that accused Abdullah Shah is not being challaned in this court, and the bail application was rejected. The prosecution submitted application under section 167, Cr.P.C. mentioning therein that efforts are being made to locate Mr. Muhammad Iqbal Khan to whom Syed Abdullah Shah granted 13 acres of K.P.T. land at the rate of Rs.25 per square yard for residential commercial/ industrial purpose. Since the investigation of the case has not yet completed it is therefore, requested that nine (9) days police custody remand may kindly be granted w.e.f. 23-12-1996 to 31-12-1996. The learned Magistrate did not allow police remand and request was disallowed and the applicant was remanded to judicial custody up to 28-12-1996. The evidence so far collected by the prosecution is documentary in nature, which is in possession of the prosecution prima facie same cannot be tampered with by the accused/applicant at this stage. Series of the cases initiated by the prosecution against the applicant and granting him bail by the Court, supports the version of the learned counsel for the applicant that Government of the days due to political differences wants to harass, humiliate and torture the applicant, by involving him in cases. The unreported judgment, referred hereinabove, pertaining to the dishonest disposal of the State land, also supports the case of the applicant that whatever the applicant did, was in the capacity of Chief Minister and the proceedings initiated against the Chief Minister (Syed Qaim Ali Shah) in a criminal case, were quashed by the learned Judge. The other authorities cited by Mr. Azizullah K. Shaikh, in my humble opinion are relevant and applicable to the present case, which I meet respectfully follow. Upshot of the above discussion is that, prima facie, case of the accused/applicant requires further enquiry. Consequently I am inclined to allow the application, which is hereby granted. The accused/applicant may be released on bail on furnishing one solvent surety in the sum of Rs.2,00,000 (Rupees two lac only) P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. He may be released, if not required in any other case. After hearing the learned counsel for the parties I have allowed the application by short order, dated 29-12-1996. These are the reasons for the same. N.H.Q./A-92/K Bail allowed.