2017 PLP 412 (YLRN)

MUHAMMAD HUMAYON KHAN, J.

By this single order , I intend to dispose of Criminal Bail Application No. 586 of 2015 and Criminal Bail Application No. 01 of 2016 filed on behalf of accused Hafeezullah and co-accused Ahmed Raza in Crime No. 07/2015 of P.S. ACE, Shikarpur, under Sections 161, 420, 467, 468, 471, 477-A and 34, P.P.C. read with section 5(2) of Act-II of 1947.

2. Brief facts of prosecution case in nutshell are that on 28.8.2015 SIP Bahadur Ali Magsi, of ACE, Shikarpur on behalf of the State lodged report stating therein that this case is being registered with the permission of competent authority and in result of complaint No.1/2013 of ACE, Shikarpur, the applicant Ali Hassan has alleged that accused Hafeezullah Pirzado is basically JST in Education department and in the financial year 2012-2013 he was posted as Town Officer TMA, Khanpur, on deputation basis, and he has started the extortation of Government Exchequer lying in Accounts of TMA Khanpur maintained with Sindh Bank Shikarpur Branch and National Bank of Pakistan Main Branch Shikarpur and in the ended June, 2013 he has quickly withdrawn amount of 20 Millions against various development works, whereas neither any physical work carried at site nor any record was maintained. It is further alleged that thereafter within 5 weeks he has utilized budget of 91.675 Millions, which were meant for various development schemes on Taluka Khanpur but he only issued cheques in favour of fake/false persons, and made payment through irregular accounts maintained by the person of Taluka Garhi Yasin who has no concern with Taluka Khanpur. It is further alleged that nothing available on record of office of TMA Khanpur to show the works done accordingly, the budget is utilized against the bogus measurements book of works, bogus vouchers/bills of repair of vehicles, bogus voucher/bills of purchase of POL for vehicles of TMA, showing bogus works of drain lines, earth work is only done in record but physically not available at the site and false quotations are to be placed on record. It is further alleged that during course of enquiry the accused was directed by the competent authority for providing the concerned record before enquiry office, but he deliberately did not provide the same, hence the case was registered.

3. The learned Special Judge, Anti-Corruption (Provincial) Larkana, by Order dated 11.11.2015 rejected the Bail Application of accused Hafeezullah and by Order dated 23.12.2015 rejected the Bail Application of co-accused Ahmed Raza. Therefore, both the accused have approached this Court for grant of bail through separate bail applications.

4. I have heard the learned counsel for both the applicants as well as the learned State counsel and perused the material available on record.

5. Learned counsel for the applicant Hafeezullah contended that there is delay of 2-1/2 years in lodging the FIR and no plausible explanation of delay is brought on record. He further contended that the accused was appointed as JST in Education Department in year 2008 and subsequently in the year 2013 with the approval of competent authority the services of the accused was transferred from the Education Department to Sindh Council Unified Grade Service (Administration Branch) and his appointment was according to law and procedure. He further argued that the opponent of the accused has put pressure upon accused that he has misappropriated the huge government funds of Taluka Council Khanpur. He further argued that the accused was TMO for short period from May to July 2013 but the allegations against accused are that he had misappropriated the amount in the year 2012 and 2013 when in fact the accused was not T.M.O. Khanpur in the year 2012. He further argued that during investigation, nothing is brought on record against the accused as alleged. He further argued that the accused has not misappropriated the alleged amount but in fact the amount was spent on work done by the accused during his period from May 2013 to July 2013 and payments were made to the contractors as per procedure and law. He further argued that nothing is brought on record that any scheme remained uncompleted. He further argued that entire payment was made not alone by the T.M.O. but there was countersignature of T.O. Finance and the cheques were issued to the contractors. He lastly submitted that the case of prosecution requires further enquiry and therefore bail application is fit to be allowed.

6. Learned counsel for the applicant Ahmed Raza contended that the name of the co-accused Ahmed Raza is not in the FIR. He further contended that there is delay of 2-1/2 years in lodging the FIR and no plausible explanation of delay is brought on record. He further argued that the Investigation Officer has recorded statements of PWs during the investigation and none of them implicate the co-accused with the alleged offense. He further argued that the co-accused is Sub-Engineer and neither he withdrew the alleged amount nor misappropriated the same. He further submitted that the only work assigned to the co-accused was to prepare the MBs which he had prepared according to law and handed over to his successor which is on record. He further stated that allegations are general in nature and no specific role has been assigned to the co-accused and there is no direct evidence connecting the co-accused Ahmed Raza with the commission of alleged offence. Learned counsel further argued that the case of the co-accused is based upon documentary evidence which is in the power and possession of the prosecution and there is no apprehension of being tampered. He lastly submitted that it is a case of further enquiry and therefore bail application is fit to be allowed.

7. On the other hand, learned State counsel contended that the accused Hafeezullah is nominated in the FIR with specific role and he has caused heavy loss to the Government. He further contended that the accused Hafeezulllah has taken away entire record with him and not even produced before the I.O. of the case. He further argued that co-accused Ahmed Raza was on duty with the accused Hafeezullah who had misappropriated the huge amount and caused heavy loss the Government. He further argued that the PWs implicated co-accused Ahmed Raza in their statements recorded under section 161, Cr.P.C. by the I.O. of the case. He lastly submitted that the offence fall within the prohibitory clause, therefore, both the applicants are not entitled for concession of bail.

8. It is well settled that in cases not falling within the prohibitory clause of section 497, Cr. P.C., the accused could not claim the bail as a matter of right and the court can decline the concession of bail if there exists a recognized exceptional circumstances. In the case of Imtiaz Ahmed and another v. The State reported in PLD 1997 SC 545. the Hon'ble Supreme Court has held that:- "

6. Adverting to the above first reason, namely, that all the offences except the offence under section 5(2) of Act of 1947 are bailable and since the latter offence does not fall under pro-hibitory clause under section 497, Cr.P.C. the two courts below erred in declining bail to the petitioners, it may be observed that by now it is a well settled proposition of law that even in respect of offences not falling under prohibitory clause of section 497, Cr.P.C.. the Courts may decline to admit an accused to bail if there exist a recognized exceptional circumstances."

9. Admittedly, the huge amount has been misappropriated by the accused Hafeezullah in collusion with the co-accused Ahmed Raza, which payments were made in utter violation of the prescribed procedure and rules, thereby, causing heavy losses to the Government exchequer. In cases effecting the whole society, the offender should be dealt with iron hands and in absence of any exceptional circumstances, the concession of bail must not be extended merely on the ground that the maximum sentence for the alleged offence is upto ten years.

10. Looking the case from another angle judicial notice can be taken of the events that in the society tendency to squandering of public funds has increased to a cancerous magnitude. It is high time, therefore, that the squanderers of public funds are dealt within an iron hand. It is the bounden duty of all the organs of the State including the judiciary that while dealing with such like cases particularly in exercise of discretionary jurisdiction, the volume and extent of injury to the society both materially and to the moral fiber thereof, is also kept in view. A person who squanders public funds commits a very heinous crime which is not less than an offence committed by a murderer who murders an individual, whereas, a squanderers kills the whole society. My this view is fully supported by the following case-laws:- i) Sajjad Hussain v. The State (PLD 1997 Karachi 165); ii) Shamraiz Khan v. The State (1999 PCr.LJ (Quetta) 128); iii) Noor Muhammad and others v. The Sate through National Accountability Bureau (NAB), Sindh and others (2015 PCr.LJ (Sindh) 1569).

11. It is well settled that deeper appreciation of evidence at bail stage is not admissible under the law. So far as the question of further enquiry is concerned, it is well settled proposition of law that every hypothecal question which can be managed would not make the same a case of further enquiry simply for the reason that same can be answered by the Trial Court subsequently after evaluation of evidence. My this view finds supports from the case of Muhammad Haseeb Khan and another v. The State through FIA CBC, Karachi (2012 PCr.LJ (Sindh) 1).

12. It is pertinent to mention here that the accused Hafeezullah was basically JST in Education Department and in the financial year 2012-13 he was posted as Town Officer, TMA, Khanpur, on deputation with the only object to misappropriate the funds. The co-accused Ahmed Raza has not denied that he was not on duty during the relevant period. It is a matter of surprise, that without preparation of MBs how the payment of millions of rupees were made to the contractors. Prima facie, it appears that both the accused persons Hafeezullah and Ahmed Raza were in collusion with each other to misappropriate the funds by causing heavy loss to the Government exchequer.

13. Considering the facts and circumstances of the instant case, I came to the conclusion that both the applicants have failed to make out case for grant of bail, therefore, both the bail applications were dismissed by me by short orders dated 30.09.2016 and the above are the reasons for both the said short orders.

14. The observations made hereinabove are tentative in nature and shall not influence the trial Court while deciding the case on merits and the trial Court shall be free to arrive at its own independent findings after evaluating the evidence in the case at the stage of trial. JK/H-20/Sindh Bail refused.