2002 PLP 1771 (YLR)

Sardar Shaukat Hayat, A.A.‑G. for the State. Date of hearing; 9th August, 2002. The petitioner namely Jamal Nasir Baig, Ex‑Stenographer, stated to have been assigned the duties of Receipt Clerk by the then Medical Superintendent D.H.Q. Hospital, Abbottabad, stands arrested under section 409, P.P.C. read with section 5(2) Prevention of Corruption Act (II of 1947) in consequence of domestic inquiry conducted by officials of D.H.Q. Hospital Abbottabad. Precise allegation against the petitioner is that he during the period July 2001 to January 2002 misappropriated an amount of Rs.8,00,

000. Initially, a case under section 409, P.P.C. was registered against the petitioner at Police Station Cantt. Abbottabad vide F.I.R. No.299, dated 1‑5‑2002. Thereafter, it was transferred to A.C.E. Abbottabad and as a result F.I.R. No.8, dated 6‑6‑2000 was registered with Police Station A.C.E. Abbottabad under section 409, P.P.C. read with section 5(2) of Prevention of Corruption Act (II of 1947). The petitioner moved a post‑arrest bail application in the Court of Special Judge Anti‑Corruption N.‑W.F.P., Camp Abbottabad for grant of bail which was rejected vide order, dated 19‑6‑

202. Hence instant bail application.

2. Mr. M. Akbar Khan Swati, Advocate appearing on behalf of the petitioner forcefully contended that petitioner appointed as Stenographer at D.H.Q., Hospital Abbottabad had no concern with the affairs of Accountant and Cashier and that he was falsely implicated in the case. The learned counsel also contended that the entire case is based on documentary evidence which has already been collected by the prosecution, as such there is no likelihood of tampering with the prosecution evidence at all. In the last limb of arguments the learned counsel submitted that mere fact, huge amount is involved, by itself, constitutes no good grounds to refuse bail to the petitioner specially when his case requires further probe to determine his guilt within the meanings of subsection (2) of section 497, Cr.P.C. In support of the pleas, reliance was placed on Ijaz Akhtar v. The State (1978 SCMR 64), Hayat Muhammad v. The State (1983 SCMR 551), Hussain Haqqani v. The State (2000 PCr.LJ 161), Pervaiz Ali Sheikh and another v. The State (1997 PCr.LJ 1988), Shahbaz Ali Malik v. The State (1999 PCr. L1 2123) and Pirzada Bashir Ahmad Shah v. The State (2002 PCr.LJ 168).

3. Sardar Shaukat Hayat, learned Additional Advocate‑General, on the contrary, supported the impugned order and reiterated that prosecution is in possession of sufficient material connecting the petitioner with the guilt and learned trial Judge had valid and cogent reasons to decline to grant bail to the petitioner.

4. Evidently, the entire evidence collected by the prosecution is based on documents which are in possession of the prosecution and as such there is no possibility of any tampering with the prosecution evidence. The then Medical Superintendent since retired, is stated to have hand in the affair. A notice is statedly issued to the Medical. Superintendent to clarify her position. Reply of the notice is still awaited. There is an Account Officer in the Hospital but the duties of Receipt Clerk had been entrusted to the petitioner. There is no order on file, in this respect. The petitioner is accused of having misappropriated an amount of Rs.8,00,000 during July, 2001 to January, 2002 in his capacity as Receipt Clerk. During all this period no notice has been taken of the situation. It has been contended with justification by learned counsel for the petitioner that at this stage actual responsibility cannot be determined and the matter requires further probe and inquiry as envisaged under subsection (2) of section 497, Cr.P.C. It is true that the amount involved is sufficiently large but it is equally true that this fact by itself would be no ground for refusing bail when the investigation of the case is not complete and the commencement of trial is likely to take considerable time as it happens in such‑like cases. The petitioner is stated to be in Jail for more than three months. It would achieve no useful purpose if the petitioner is kept behind the bars for indefinite period.

5. Having regard to the facts and circumstances of the case I find myself in agreement with learned counsel for the petitioner that the case of his client is arguable for the purpose of bail and requires further probe to determine his guilt under subsection (2) of section 497, Cr.P.C. The application of the petitioner is accepted and he is admitted to bail on furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lacs only) with two sureties each in the like amount to the satisfaction of the trial Court/Duty Judicial Magistrate Abbottabad.

6. The observations made above are tentative in nature and relate to the order in hand. The learned trial Judge shall decide the matter with an open mind on the basis of the material brought before him.

7. The petitioner was allowed bail on 9‑8‑2002 for reasons to be recorded later. Above are the detailed reasons. S.M.A./584/P Bail granted.