2019 PLP 1327 (YLR)

RAJA SAEED AKRAM KHAN, J.

The captioned application has been filed for cancellation of bail granted by this Court to the accused-respondents vide order dated 16.02.2018. After hearing the arguments in the captioned application this Court on 16.01.2019 passed the short order in the following terms:-- "After hearing the learned counsel for the parties and perusal of the record, the concession of bail granted to the accused-respondents is recalled. The Ehtesab Bureau is directed to promptly complete the investigation and ensure completion of the same within 15 days and submit the reference before reference Court. The accused-respondents are at liberty to approach the reference Court for bail, if they have any legal ground. " The detailed order is as under:--

2. The gist of the facts is that Assistant Commissioner, Hattian Bala lodged a complaint at Police Station, Hattian Bala on 24.03.2017 to the effect that Tariq Riaz, Junior Clerk (accused-respondent No.1) was transferred from the office of Assistant Commissioner/ Collector Land Acquisition, Hattian Bala to the office of Extra Assistant Commissioner, Jehlum Valley, vide order dated 27.09.2016, who did not hand over the record of the office pertaining to the land acquisition matters despite passage of several months. Through a letter bearing No.4793-95, dated 27.12.2016. he was directed by the Deputy Commissioner, Jehlum Valley, to hand over the record within 15 days but he did not comply with the direction. In the meantime, on suspicion of huge embezzlement in the amounts regarding land acquisition pertaining to years 2004 to 2016, on the direction of the Additional Commissioner Board of Revenue, Muzaffarabad an inquiry was conducted against the said clerk. The accused neither appeared before the inquiry officer nor provided the relevant record to him. On 24.03.2017, it came to know that the computer in which the whole data was kept saved has also been stolen on 23.02.2017. It was also found that many leaves of cheques of huge amounts have been issued in the name of one of the accused-respondent, herein, and the amount was duly drawn from the bank. On this complaint, a case in the offences under sections 471, 467, 468, 419, 420, 406 and 409, A.P.C. read with section 14 of the Offence Against Property (Enforcement of Hudood) Act, 1985, was registered against the accused-respondents. The accused-respondents were apprehended by the Police. After the submission of challan, the accused-respondents filed an application for grant of bail after arrest before Tehsil Court of Criminal Jurisdiction, Jehlum Valley which was rejected vide order dated 15.08.2017. The accused filed second bail application in the District Court of Criminal Jurisdiction, Jehlum Valley, which was also rejected vide order dated 24.08.2017. The accused-respondents filed a revision petition before the learned High Court which met the same fate and thereafter they filed a revision petition before this Court. This Court while accepting the revision petition released the accused-respondents on bail vide order dated 16.02.2018 and now the applicant approached this Court for cancellation of bail granted by this Court.

3. Sardar Amjad Aslam, Chief Prosecutor Ehtesab Bureau, argued that the accused-respondents after obtaining the concession of bail from this Court misused the same as they did not join the investigation in spite of the fact that that the investigating officer summoned them a number of time. In this regard, the learned Chief Prosecutor drew the attention of this Court towards the report of the investigating officer available on record as annexure PB and the different notices issued to accused-respondents. He further added that the accused-respondents are involved in the embezzlement of a huge amount of Rs.2,96,15,593/-, out of which an amount of Rs.1,00,000,00/- is yet to be recovered. He added that as the accused-respondents have played the main role in the commission of embezzlement, therefore, non-cooperation by them in the investigation proceedings badly affected the case. He contended that the personal bank accounts maintaining by the accused-respondents show that a huge number of embezzled amount was deposited in the same which connects them with the commission of offence. in this regard, he placed on record the data of bank accounts. While referring to a number of cheques he maintained that the accused-respondents affixed forged signatures of the Drawing and Disbursement Officers (DDOs) and this fact is proved from the report of the expert available on record as annexure PD. He prayed for acceptance of application and cancellation of bail.

4. On the other hand, Kh. Attaullah Chak, Advocate, the learned counsel for the accused-respondents strongly controverted the arguments advanced by the Chief Prosecutor Ehtesab Bureau. He contended that once bail is granted there must be some strong and exceptional grounds for cancellation of the same whereas, no such grounds are available in the instant case. The accused-respondents have not misused the concession of bail. They have been enroped in a false case while letting off the real culprits. He submitted that Ehtesab Bureau wants recovery of such amount from the accused-respondents which has not been embezzled by them. He added that nothing is available on record to show that the accused-respondents were aware of the transactions made in their personal accounts. Raja Aftab Ahmed, Advocate, one of the counsel for the accused-respondents, filed written arguments and took the plea that accused-respondent No.1 has never been posted in the office of Assistant Commissioner Hattain Bala, therefore, he cannot be held responsible for the embezzlement made in that office. He referred to the report of an Inquiry Committee and stressed that in view of the report the accused-respondents are not involved in the embezzlement.

5. We have heard the arguments and gone through the record made available. In the early round of litigation, the revision petition filed by the accused-respondents was accepted by this Court and concession of bail was granted to them with the condition that if the concerned investigating agency, Ehtesab Bureau, on the basis of legal evidence finds the accused disentitled for bail, may approach this Court for cancellation. Now the applicant-Ehtesab Bureau, approached the Court on the ground that the accused-respondents after getting the concession of bail from this Court have not joined the investigation despite the fact that they were summoned by the investigation officer by a number of time. This version is supported by the report of investigating officer, the relevant portion of which reads as under:-- The version of Ehtesab Bureau is further being supported by the summons issued by the Ehtesab Bureau to the accused-respondents for joining in the investigation proceedings, available on record as annexure PB/1. The learned counsel for the accused-respondents during the course of arguments submitted that the accused-respondents are fully co-operating with the investigating agency but failed to bring on record anything in support of this contention. The non-joining of the investigation proceedings by the accused-respondents despite summoning by the investigating agency amounts to misuse of concession of bail and frustrate the legal proceedings which is a valid ground under law recalling the bail granting order. The matter pertains to the embezzlement of a huge amount from the public exchequer and the investigation has not been completed even after a lapse of considerable time due to the conduct of the accused-respondents. The details of the bank accounts of the accused-respondents show that the transactions of the embezzled amounts have been made in their accounts which prima facie connect them with the commission of the offence. In view of the nature of the case and the conduct of the accused-respondents, we felt that the instant application has substance and cancellation of bail is justified. The aforesaid are the reasons on the basis of which the bail granting order dated 16.02.2018 was recalled. SA/28/SC(AJ&K) Bail recalled.