1988 PLP 1223 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the order of a learned Judge of Sind High Court dated 2‑6‑1987 refusing to grant pre‑arrest bail to petitioner, who alongwith certain others is facing trial in a case under sections 409, 420/34, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. The allegations against the petitioner, who at the relevant time was the Ward Rationing Officer, Incharge P.R. Centre, Food Department, Hyderabad, are that he in collusion with Nasrullah Sahto, Assistant Food Controller and other officials of P.R. Centre cheated the Government and misappropriated or converted to his own use about 39,800 bags of wheat, valued at about Rs.87 lacs. The crime was registered by Circle Officer, A. C.E. , Hyderabad, on 14‑1‑1987 on the report of the Rationing Controller, Hyderabad,' that on his physical verification of the stock at P. R. Centre on 30‑9‑1986, he found difference/shortage of 30,561 bags of wheat. Before taking any further action, however, he checked all the accounts of the arrivals and releases of wheat stock. By this time, the next quarterly physical verification process became due on 11‑12‑1986. On that date, he again checked the wheat stock in the presence of petitioner and Nasrullah Sahto with the result that shortage of 39,800 bags of wheat was discovered. It was in these circumstances that he made the report for registration of the crime. The main ground on which the request for pre‑arrest bail was pressed on behalf of the petitioner before the High Court was that, no doubt, he was Incharge of P.R. Godown, but "he had nothing to do with the handing over of the bags of wheat or taking over the same into godown". It was further submitted that "the statements of witnesses recorded under section 164 Cr.P. C. have not, in any way, implicated him". Learned Judge in the High Court rejected these pleas on the ground that police record contains certain chits written by petitioner addressed to the co‑accused Nasrullah Sahto of having received some amounts of money, "in one of the chits the amount of Rs.10 lacs is mentioned". This evidence, according to the learned Judge, may or may not be sufficient for upholding the guilt of the petitioner on the charges leveled against him, but since there was some material against the petitioner, it could not be said that there was mala fides on the part of the investigation agency somas to make, out a case for pre‑arrest bail. Mr. Abdul Mujeeb Pirzada, learned counsel appearing in support of this petition for leave to appeal from the order of the High Court submits that the learned Judge has erred in taking into consideration certain chits said to be acknowledgements written by petitioner in favour of the co‑accused which do not even convey any sensible meaning, and, in any case, these cannot possibly have any bearing, or connection to the charges levelled against petitioner. At best, according to the learned counsel, these may be a material for a further inquiry and as such petitioner is entitled to the grant of pre‑arrest bail. Learned counsel further submitted that the learned Judge in the High Court has also not appreciated that the fact that it was not the duty of the petitioner to account for each bag of wheat in the godown, and be responsible for it in a manner so as to attract the mischief of the offences alleged against him. Mr. Murtaza Hussain, learned counsel appearing for the State produced before us the a alleged acknowledgements or chits on which reliance was placed by the learned Judge in the High Court. Perusal of these documents prima facie support the plea that even if it is assumed for the sake of argument that these are written by petitioner and are assumed to have been addressed to the co‑accused, there has got to be a further inquiry so as to connect the petitioner with the crime. Learned counsel for the State was also unable to controvert the plea that in their statements under section 164 Cr.P.C. prosecution witnesses examined so far have hardly implicated the petitioner. It clearly appears that the evidence so far collected by the prosecution requires further inquiry in order to connect him with the crime. The petitioner had specifically asserted that he was falsely implicated in the case due to departmental intrigue and conspiracy so as to harass and insult him. No burden is cast on him at this stage and in these proceedings to prove these allegations. In fact, burden does not lie on him at any stage to prove his innocence. A valid and proper case for grant of pre‑arrest bail is therefore made out. For these reasons, we convert this petition into an appeal and allow it, and in result direct that petitioner shall continue to remain on pre‑arrest bail if he has already furnished surety and bail bonds in terms of the order of this Court dated 14‑7‑1987. The petitioner is directed to associate with the police investigation in all respects and his failure in this regard shall entitle the prosecution to apply to the trial Court for cancellation of the bail granted to the petitioner by this Court. It is also clarified that this order shall not prevent the prosecution from applying to the trial Court for cancellation of bail granted by this order if sufficient material is produced by the prosecution in support of the charges against the petitioner. On such application being made, the trial Court shall deal with it and pass any order that may be deemed fit and proper according to law. M.I. /R‑51/S Leave granted.