Criminal misconduct

Subsequently, the owner of the vehicle in question filed an application under S. 516-A, Cr.P.C before the Trial Court for release of vehicle; initially the same was withdrawn and subsequently fresh application was filed, which was allowed, whereby the Trial Court, while utilizing the powers and jurisdiction as an Ex-Officio Justice of Peace directed the Commissioner and the Deputy Commissioner concerned to initiate a criminal case by means of lodging FIR against the petitioner/Investigation Officer of the case under Ss.403 and 409, P.P.C

Validity

In the case in hand, no complaint had been filed against the petitioner rather an application under Section 561-A, Cr.P.C. for release of vehicle was filed before the Ex-Officio Justice of Peace, wherein neither any complaint was filed or pending against the petitioner nor any such relief was sought against the petitioner for registering FIR against him

Impugned order had been passed by the Trial Court in the capacity of Ex-Officio Justice of Peace without holding an enquiry and without giving an opportunity of hearing to the petitioner, giving directions to the higher hierarchy of the petitioner's department for lodging of FIR, which was contrary to the scheme of law

Besides, the Ex-Officio Justice of Peace was not a Judicial Magistrate, who could take cognizance upon his own knowledge or information communicated to him

However, any order passed by a Court in the capacity of Ex-Officio Justice of Peace should be respected as the same was passed by him; while performing a quasi-judicial function, but only in a case, when a complaint was made before him in writing for excess committed by a levies/police official/officer

Without any application or complaint before Ex-Officio Justice of Peace, he could not pass an order against any levies/police officer

In such a situation, it would be appropriate to provide the said levies officer an opportunity to clarify his position by holding an inquiry by himself or through some other authority

Any suggestion or direction given by the Ex-Officio Justice of Peace is required to be respected similar to a judicial order and should be followed in letter and spirit, otherwise the person disobeying the same may expose himself for appropriate action as per law

Petition was allowed accordingly.

Words 'fraudulent' and 'entrustment' are missing in the definition of 'dishonest misappropriation of property' provided in S. 403, P.P.C.

Offence under S. 5(1)(c) of Prevention of Corruption Act, 1947, deals with 'any property' while offence under S. 403, P.P.C. is confined to 'moveable property' only

Element of entrustment of property has been procured to convert an offence of 'dishonest misappropriation' to 'criminal breach of trust'

Definition of criminal breach of trust provided in S. 405, P.P.C. is wide enough with extended concept while erasing the word 'moveable property' and adding the word 'entrustment', as compared to S. 403, P.P.C.

Said definition too is at little contrast with clause (c) as it does not find mentioned the word 'fraudulently'

Section 5(1)(c) of Prevention of Corruption Act, 1947, covers the misdemeanours like misappropriation committed either with dishonest intention or intention to defraud

When the evidence discloses element of fraud only, S. 405, P.P.C. shall not be applicable for misappropriation, likewise rest of the sections for penal consequences including S. 409, P.P.C. shall not be attracted, and in that situation offence shall only be dealt with under S. 5(1)(c) of Prevention of Corruption Act, 1947.

Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for valuable security, will, etc., forgery for purpose of cheating, using as genuine a forged document

Criminal misconduct

Bail, grant of

Scope

Allegation against accused persons was that they got transferred the government land in favour of private persons at a cheaper rate per acre by preparing forged and fictitious documents

Naib Tehsildar had reported that the status of land in issue was 'Null Chahi'

Colony Clerk had reported that the application filed for grant of proprietary rights had been filed within limitation

Patwari had assisted the Naib Tehsildar in submitting the status of land as 'Null Chahi'

Private persons were alleged to have got allotted the state land

Accused persons were though named in the crime report yet no role whatsoever for demanding, receiving or extorting even a single penny from any corner had been brought on record

Though there was allegation of preparing and using forged documents in getting allotted the state land yet no forensic report was available on record in that regard, as such, the application of S.467, P.P.C., to the facts and circumstances of the case would be determined by the Trial Court after recording the evidence

Remaining offences with which the accused persons had been charged, did not attract the prohibitory limb of S. 497, Cr.P.C.

Nothing incriminating material could be recovered from the accused persons

Accused persons were admitted to bail, in circumstances.

Public servant taking gratification other than legal remuneration in respect of an official act, public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant, abetment of offences defined in Ss. 161 & 165, P.P.C.

Criminal misconduct

Pre-arrest bail, grant of

Scope

Accused persons sought bail before arrest

Co-accused who was booked in another crime registered by the same agency, which was not only punishable under the same sections under which the accused persons were being tried but Ss. 3 & 4 of Anti-Money Laundering Act, 2010, were also added and had already been granted post-arrest bail

Accused persons were also entitled for grant of bail

Bail granting order had gone unchallenged by the prosecution

Investigating Officer had categorically made a statement that all the accused persons had joined investigation inasmuch as their respective statements had also been recorded

Pre-arrest bail were allowed, in circumstances.

Allegation against accused was that he had persuaded the complainant for arranging service of his son in Education Department being a teacher in government school

Upon such persuasion, the complainant handed over certain amount as bribe and it was settled that the remaining amount would be arranged after getting the order of appointment

For the purpose of the arrest of accused, a trap was devised as such two memos were made; one for handing over of tainted money and the other for recovery and arrest of the accused

Memo of arrest and recovery did not bear the number of tainted money

Accused had nothing to do with the process of hiring and appointment of any employee in Education Department

Conversation between accused and complainant was neither heard by the raiding Magistrate nor by witnesses

Accused had alleged that the recovered amount was in connection of a deal between the accused and complainant for the sale of a motorcycle

Witness before whom the accused had allegedly demanded bribe had not supported the version of complainant

Accused was entitled to the concession of bail as such he was admitted to post-arrest bail.

Accused persons were attributed specific role that they were involved in the illegal sale and purchase of the government stamped medicines by committing fraud and forgery

Huge quantity of government medicines had been recovered from their possession at the time of arrest, which prima facie connected them with the commission of alleged offence

Allegations against accused persons were of serious in nature, as they were involved in the illegal sale and purchase of government stamped medicine in huge quantity, thereby causing loss to the government exchequer, so also the poor and needy patients were deprived of the legitimate right of provision of government medicines at government hospitals

If such practice was not contained with iron hands, the same would be repeated again and again

Offence with which the accused persons were charged fell within the prohibitory clause of S. 497, Cr.P.C. disentitling them to the concession of bail

Accused persons had failed to make out a case of further inquiry

Applications were dismissed, in circumstances.

Appellant was convicted for misappropriation and embezzlement of certain amount which was received by him as a Bank teller

Counsel for appellant conceded that the prosecution had proved the charge and stated that he did not want to argue the appeal on merits instead requested a reasonable reduction in sentence on the grounds that (a) he had served most of his sentence (b) that he had a family to support for which he was the sole bread winner (c) that he suffered ill health (d) that he had already suffered through the loss of his job (e) that the appellant showed remorse for his actions by deciding not to contest the appeal and (f) that the appellant had used his time productively in jail in activities which could contribute towards his reformation

Mitigating circumstances made out by the appellant justified a reduction in sentence

Appellant's conviction was maintained but his sentence was reduced from seven years to six years

For default in payment of fine, the appellant was directed to undergo one year

High Court clarified that the appellant would still be liable to pay the fine imposed on him under the impugned judgment

Appeal was dismissed except as modified in terms of sentencing.

Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment

Criminal misconduct

Bail, refusal of

Scope

Name of the accused transpired in the FIR with specific allegation of issuance of false birth certificate which was predominantly used by co-accused for cheating

Accused at the time of issuance of the certificate was posted as Secretary Union Council

Accused was also involved in two cases of similar nature which showed that he was a habitual offender

Prosecution witnesses had fully implicated the accused with the commission of the offence and had supported the version of the complainant in their statements under S.161, Cr.P.C.

Sufficient material was available on record to connect the accused with the alleged offence

Petition for grant of bail was dismissed, in circumstances.

Criminal breach of trust by public servant or by banker, merchant or agent, cheating and dishonestly inducing delivery of property

Criminal misconduct

Proof of contents of documents

Proof of documents by primary evidence

Cases in which secondary evidence relating to documents may be given

Appreciation of evidence

Benefit of doubt

Delayed FIR

Effect

Accused was convicted for having misappropriated certain amount of sum

First Information Report was lodged with a delay of about four years

Almost all the documents produced by the prosecution witnesses were photocopies

Defence counsel had timely raised objections on the production of photocopies but the trial judge had observed that such objections would be resolved at the time of final hearing

Not a single sentence was available in the impugned judgment which would show that such objections were considered by the Trial Court

Where primary evidence was available then secondary evidence was not admissible in respect of a document

Present case did not fall in any of the Exceptions enumerated in Art. 76 of the Qanun-e-Shahadat, 1984, as it was not pleaded by the prosecution that original documents were not available with them

Prosecution witnesses had not denied in clear terms that the accused had not deposited the remaining amount, on the contrary, they had showed their ignorance about such fact which could not be equated with denial

Prosecution had not been successful in discharging its obligation to prove the case beyond shadow of reasonable doubt

Appeal against conviction was allowed, in circumstances.

Criminal breach of trust by public servant or by banker, merchant or agent, forgery for valuable security, forgery for purpose of cheating, using as genuine a forged document, common intention

Criminal misconduct

Opinions of experts

Comparison of signature, writing or seal with others admitted or proved

Appreciation of evidence

Prosecution case was that the accused persons made bogus appointment of a teacher and obtained a loan of Rs. 96000/- from a bank against advance salary scheme

FIR was lodged after a delay of about 10 years

Complainant himself was the investigating officer of the case, it could not be expected that he would collect any material which went against the prosecution or gave any benefit to the accused

Signatures on the attestation and verification documents were seriously disputed by the accused persons but the Trial Court while delivering the judgment accepted the evidence without referring the documents to handwriting expert for comparison and opinion as envisaged under Arts. 59 & 84 of Qanun-e-Shahadat, 1984

Alleged loan amount was returned to the Bank even before registration of FIR but this fact was not mentioned in the challan

Appeals against conviction were allowed, in circumstances.

Criminal breach of trust by public servant, or by banker, merchant or agent, falsification of accounts, common intention

Criminal misconduct

Bail, grant of

Delayed FIR

Further inquiry

Scope

Accused, a Sub-Accountant, was alleged to have illegally issued an Identification Number to an employee, who had allegedly obtained salaries from a school

Inordinate delay of seven years in lodgment of the FIR was not explained by the prosecution

Investigating Officer had stated that no material was collected during the investigation to show that the accused was beneficiary and as to how much amount was misappropriated or embezzled

Apart from accused, no other officer/official from the District Accounts Office was associated to the investigation

Offence with which the accused was charged did not fall within the prohibitory clause of S. 497, Cr.P.C.

Case of accused required further inquiry

Petition for grant of bail was allowed, in circumstances.

All the accused persons arrested in the case had been released on bail after arrest hence the accused was also entitled for the grant of bail after arrest on the principle of consistency

Entire case depended on documentary evidence which had already been collected by the investigating agency

Prosecution had failed to satisfy the Court that the inordinate delay in conclusion of trial was not partly attributable to it

Writ petition was allowed and the accused was admitted to post-arrest bail, in circumstances.

Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, falsification of accounts

Criminal misconduct

Bail, grant of

Scope

Accused persons were alleged to have been involved in the fraudulent allotment of plots of the Development Authority

Offences under Ss. 420, 471 & 477-A, P.P.C. were bailable

As far as S. 468, P.P.C. and S. 5(2) of Prevention of Corruption Act, 1947, were concerned, it was confirmed by the Investigating Officer that there was no evidence available on record which depicted that the accused persons themselves had prepared any forged document or had received illegal gratification from any person

Only allegation against the accused persons was that during their posting in the Accountants Directorate they had forwarded the Pay Orders for encashment to the Bank and the amount was credited in the account of Development Authority

Investigating Officer had stated that the accused persons had admitted that they had changed the dates on the Pay Orders

Confession made before a person in authority and confession made against co-accused was inadmissible and such a confession was hit by Art. 38 of Qanun-e-Shahadat, 1984

Documentary evidence had already been collected by the Investigating Officer

Investigation in the case was complete and the accused persons were not required to the police for further investigation

Petition for grant of bail was accepted, in circumstances.

Patwari, who was custodian of the record, might have presumably tempered the tracing cloth but he was released under S. 169, Cr.P.C.

Rule of consistency was fully attracted in the case

Civil litigation between the accused and the complainant on the same subject matter was sub judice before the court of Senior Civil Judge

Case of FIA was based on official record which was already in its custody

Nothing was to be recovered from the accused even after his arrest

Petition for grant of pre-arrest bail was allowed, in circumstances.

Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment

Criminal misconduct

Bail, grant of

Complainant made a complaint to FIA against three persons with the allegation that they tempered the record and obtained CNIC based on fake birth certificate as they wanted to transfer ancestral property in their names

Name of the accused (subsequent purchaser of the property) was not included in the list of accused, however, in paragraph 13 of the challan it was stated that the modification/addition was attested by Senior Superintendent of Police (SSP) but his name was not placed in the interim challan as an accused

Later on statement of the SSP was recorded wherein he had stated that accused had obtained the attestation, as such, he was booked in the case

Investigating Officer had failed to collect further evidence against the accused to connect him with the alleged offence

Trial Court had yet to determine as to whether the accused had hatched the conspiracy or he was a bona fide purchaser of the property

Case against accused fell within the category of further enquiry

Accused was in jail, challan has been submitted, he was not required for further investigation and his detention in jail would not improve the case of prosecution as the documents had already been collected

Petition for grant of bail was allowed, in circumstances.

Petitioners sought initiation of legal action against an Assistant Sub-Inspector of Police (ASI) and his subordinate officials on the ground that the ASI got lodged an FIR against unknown thieves; that the petitioners were taken into police custody, were tortured and that the police party obtained illegal gratification

Director, Anti-Corruption, after recording the statements of the concerned, had consigned the complaint to record on the ground that the person who had given gratification had died

Held that death of a witness did not exonerate an offender from the liability, provided sufficient evidence was available on record

Director, Anti-Corruption, just to save the concerned police officials, had put the whole implicating material in the bin, which was not warranted by the law

Writ petition was accepted and the Director, Anti-Corruption was directed to register FIR in the light of the complaint and submit challan to the competent court.

Abetment, criminal breach of trust by banker, cheating and dishonestly inducing delivery of property, forgery for valuable security, forgery for purpose of cheating, using as genuine a forged document

Bail, refusal of

Positive report of Handwriting Expert

Effect

Prosecution case against main accused was that he had received the cheques of different account holders, filled them with an amount of his own handwriting, encashed them, received the amount of his own and then handed it over to the customers; that he had received cash from different account holders and without depositing the same into their account given them bogus receipts and that he had filled the cheques with higher amounts and in connivance with other officials of the Bank had encashed the cheques

Receipts and the cheques filled by accused, which had earlier been denied, were submitted to the Handwriting Expert and the report thereof had been received with positive result showing that all those receipts and cheques had similar credentials

Prima facie, sufficient material was available with the prosecution to connect the accused with the alleged crime

Receipts issued against the amount got deposited by the different account holders had been found containing original stamps of Bank but the said amount was not deposited in their respective accounts by the accused

Different account holders, in their statements recorded under S.161, Cr.P.C. had named the accused being the sole culprit, who had filled the cheques, deposited their amounts and had given forged receipts to them

Overwhelming evidence available with the prosecution showed that the accused was not entitled to the relief claimed for

Petition for grant of post-arrest bail was dismissed, in circumstances.

Abetment, criminal breach of trust by banker, cheating and dishonestly inducing delivery of property, forgery for valuable security, forgery for purpose of cheating, using as genuine a forged document

Pre-arrest bail, grant of

Rule of consistency

Scope

Accused was alleged to have misappropriated huge amount of different Bank account holders

Accused placed reliance on an order granting pre-arrest bail to a co-accused, who had been given the identical role to that of the accused as he was not named in the crime report in any capacity, whatsoever and during investigation he was saddled with some responsibility of facilitating main accused to misappropriate the amount of different Bank account holders

Prosecution conceded that the role of accused was not distinguishable to that of co-accused

High Court, taking into account the principle of rule of consistency, allowed the petition for grant of pre-arrest bail.

Accused persons were booked in the crime report with the allegation that they connived with the revenue officials, who by receiving bribe, illegally entered mutation, embezzled mutation fees and also mutated excessive property in favour of one of the accused persons by committing forgery in the revenue record and thereby not only defrauded the complainant but also caused a huge loss to the public exchequer by misappropriation and embezzlement of mutation fees

No allegation was levelled against the accused persons regarding any misuse or abuse of concession of bail

Report under S. 173, Cr.P.C. had already been prepared and was sent to the prosecution branch by the investigating agency, therefore, cancellation of bail was not proper

Applications for cancellation of bail were dismissed.

Petitioners were booked in the crime report with the allegation that they connived with the revenue officials, who by receiving bribe, illegally entered mutation, embezzled mutation fees and also mutated excessive property in favour of one of the accused persons by committing forgery in the revenue record and thereby not only defrauded the complainant but also caused a huge loss to the public exchequer by misappropriation and embezzlement of mutation fees

One of the accused person's name was although mentioned in the FIR, but he had neither sold out any property to the complainant nor had he played any role in the alleged crime

Second accused person's role was that he had sold out the property in excess of his respective share to the complainant and thereby committed fraud, but at the same time complainant admitted that he was in possession of the land which he had purchased from the accused party

Complainant had already filed a suit for specific performance which was sub-judice before the civil court and that was the best forum to resolve the entire controversy

First Information Report was lodged by the complainant after four years of the alleged occurrence for which no plausible explanation had been given

Accused persons were admitted to pre-arrest bail, in circumstances.

Section 5(2), Prevention of Corruption Act, 1947, applies to all citizens of Pakistan, however, Anti-Corruption Police is neither conferred with any power nor authority to investigate into a dispute regarding private lands nor does Prevention of Corruption Act, 1947 permits the Anti-Corruption Police to entertain any complaint with regard to title dispute between private parties.

Mashirnama showed that fifteen currency notes with denomination of Rs.1000 each had been allegedly tainted by the Anti-Corruption Establishment, and during search, only an amount of Rs.6000 had been recovered from possession of the accused instead of Rs.15000

Raid had been conducted under the supervision of the Magistrate and complainant had gone inside of the office and made payment of the tainted currency notes to the accused, but the raiding party had remained away/outside of the office of the accused; therefore, the raiding party had neither heard the conversation between the complainant and the accused nor witnessed the factum of payment of alleged tainted money

Challan of the case had already been submitted and the accused was no more required for investigation

Accused had been behind the bars for four months, but the prosecution had failed to examine even a single witness to substantiate the charge against him

Offences under S. 161, P.P.C. read with S.5(2) of Prevention of Corruption Act, 1947 was neither punishable with death nor imprisonment for life or imprisonment for ten years, hence, the same did not fall within the prohibitory clause of S. 497 (1), Cr.P.C

Bail application was allowed accordingly.

Anti-Corruption police is neither conferred with any power nor authority to investigate a dispute regarding entries pertaining to private lands, nor does Prevention of Corruption Act, 1947 permit the Anti-Corruption Police to entertain any complaint with regards to the title dispute between the private parties.

Anti-Corruption Establishment, after open inquiry, initiated investigation against the petitioner for unauthorized cutting and selling of trees and depositing only part of the total sale proceeds

Validity

Findings of the audit report in the open inquiry showed that trees in question had been cut and sold by the petitioner without prior approval from the competent authority and after constant pressure had deposited partial sale amount in the Government Exchequer, and that the petitioner also had other immoral activities in the hospital

Investigation in connection with the open inquiry was already under way; therefore, High Court could not interfere in the inquiry proceedings

Constitutional petition was dismissed in circumstances.

Application under S. 426, Cr.P.C. was accepted accordingly.

High Court observed that 'corruption' in a civilized society is like a disease like cancer, which, if not detected in time, is surely to malign the polity of country leading to disastrous consequences

'Corruption' is now termed as 'Royal thievery', which affects not only an individual', but also the economy, and the same destroys cultural heritage

Crime of 'corruption' is to be considered as one of the serious problems and threats posed to stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardizing sustainable development and rule of law

One must keep distinction between an act of receiving money as 'consideration' for doing an illegal or legal act and the act which falls within meaning of corruption qualifying the term 'misappropriation'.

Criminal breach of trust by public servant, by banker, merchant or agent; forgery; forgery for purpose of cheating; using as genuine a forged document; falsification of accounts; common intention

Criminal misconduct

Bail after arrest, grant of

Further inquiry

Alibi, plea of

Main culprit not implicated

Accused persons were alleged to have misappropriated public funds allocated for a public sector development program

Available record, showed that the accused was posted at some other place on his transfer at the time of commission of offence, which required serious consideration

Record revealed that total amount allocated to the development project and the amount alleged misappropriated were different

Main culprit/XEN Irrigation, who was the competent authority to approve the cases for the payments in question, under whose directions the cheques had been prepared, and who had signed the cheques, had not been implicated in the present case

Accused persons were neither in commanding position in the office, nor had they issued any cheques nor were they signatory to the same, whereby the Government funds had been allegedly misappropriated

Prosecution's entire case depended upon documentary evidence, which had already been collected during the investigation and the same was in custody of the prosecution; therefore, no apprehension of tampering with the evidence existed

Allegations leveled against the accused did not fall within the restraining clause of S. 497, Cr.P.C

Challan had already been submitted

State counsel had no objection to the grant of bail

Bail applications were allowed accordingly.