' This petition for leave to appeal has been directed against the judgment passed by the High Court on 30-6-2004, whereby the concession of bail was refused to the petitioner for allegedly committing the offences under sections 467, 468, 471, 419 and 420, APC, section 5 subsection (2) of Prevention of Corruption Act, sections 10/11, Ehtesab Bureau Act, 2001; section 4 of Misdemeanour Act, 1948 and sections 5/6 of Public Office Misconduct Act, 1965.
2. The brief facts of the case are that, it is alleged by the Ehtesab Bureau that the accused- petitioner, Muhammad Asif, is serving as Head Clerk in Government Girls Elementary College Bagh.
He allegedly stole some cheques from College on different occasions and illegally received Rs,1,92,500, the detail of which is as follows:-- "(i) From the Account No,211-6 (Development Funds of College) through Cheque No,500990, dated 17-5-2003, . Rs,30,000, Cheque No,261827, dated 23-5-2003, Rs,20,000, Cheque No, 261830, dated 18- 6-2003, Rs,20,000, Cheque No, 261831, dated 10-7-2003, Rs,25,000 and Cheque No,261832, dated 16- 8-2003, Rs .25 ,000 .
(ii) From Account No,214-3 through Cheque No, 49011, dated 19-5-2003, Rs, 10,500.
(iii) From Account No,210-7 through Cheque No, 500971, dated 19-5-2003 Rs,20,000, Cheque No,500972, dated 25-7-2003, Rs,15,000 and Cheque No,500973, dated 29-9-2003 Rs,12,000.
(iv) From Account No,9637 through Cheque No, 21568789, dated 2-9-2003 Rs,15,000.
3. The Ehtesab Bureau demanded that accused-petitioner should be dealt with in accordance with law. The above stated cheques were drawn from May, 2003 to September, 2003. In October, 2003, the cash Clerk submitted a report before the Principal who constituted a committee to probe into the matter. The committee submitted its report before the Principal on 17-10-2003. After the inquiry report the matter was brought before the Secretary Education who also constituted a committee on 1-11-2003 to probe into the matter and the committee submitted its report on 28-2-2004. It is worthwhile to state here that during these departmental inquiries and proceedings, the head of the institution (Principal) moved an application before the SHO Police Station, Bagh on 27-10-2003.
Before this application the Principal moved an application before the Director Anti-Corruption Muzaffarabad on 25-10-2003 and an application was also moved before the Ehtesab Bureau by the Principal.
4. The accused-petitioner was apprehended by the Ehteab Bureau on 23-5-2004 and grounds of arrest were provided to him on 24-5-2004. The petitioner, therein, moved an application before the Judge Ehtesab Court No,1 at Muzaffarabad on 25-5-2004 for his release on bail. The learned Judge Ehtesab Court rejected the application of the petitioner vide his judgment, dated 5-6-2004. This order of the Ehtesab Court was challenged through a revision petition before the High Court and the High Court dismissed the said revision petition vide its judgment, dated 30-6-2004. It is the aforesaid judgment of the High Court which is the subject-matter of present petition for leave to appeal and the application for grant of ad interim relief of bail till the disposal of appeal.
5. In support of petition for leave to appeal, it was vehemently contended by Khawaj a Attaullah Chak, the learned Counsel for the petitioner, that cash/accounts were not in the custody of the accused-petitioner. The learned counsel submitted that statements of Muhammad Munsaf and Farooq were contradictory which create a reasonable doubt in the case and the benefit of doubt has not been extended in favour of the accused-petitioner by giving him the concession of bail.
The learned counsel also contended that an affidavit sworn by Muhammad Munsaf has been obtained by exerting undue pressure on him; hence sanctity of this affidavit is doubtful in the eye of law. He also maintained that in fact Muhammad Munsaf seems to be an accused person and it is for this reason that his statement was got recorded by Tehsildar, Magistrate 1st Class, Bagh, under section 164, Cr.P.C. The statement of co-accused against the accused is always seen with suspicion because the accused who betrays his companion cannot be considered as a trust worthy unless his statement is corroborated in material particulars by some other evidence which is totally missing in the present case. There is no evidence of forgery committed by the accused- petitioner. The delay in lodging or taking action against the accused-petitioner has also been ignored by the trial Court as well as the High Court. The learned counsel vehemently urged the prosecution has failed to establish its case prima facie beyond reasonable doubts and evidence collected by the prosecution is self-contradictory and having no substance in the eye of law. The learned counsel contended that no specimen signatures from the accused-petitioner were obtained by the Ehtesab Bureau whereas the specimen signatures of Farooq, in whose custody the accounts were, and one Akhlaque, were obtained by the Ehtesab Bureau and were sent to the Handwriting Expert. The learned counsel contended that the trial Court as well as the High Court misdirected themselves by relying upon the previous conduct of the petitioner wherein he was alleged to have misappropriated the funds and accounts from some other stations during his posting; but they forgot to observe that unless and until the previous conduct is established against the accused person and by putting him the same under section 342, Cr.P.C. No adverse inference can be drawn at the stage of bail although the High Court and the trial Court have observed that the petitioner is fully connected with the commission of offences alleged but at the same time both of them have advanced no cogent reasons in support of their above findings.
6. While opposing the petition for leave to appeal, it was vehemently contended by Mr. S.A.
Mehmood Siddozai, the learned Chief Prosecutor Ehtesab Bureau, that there are two concurrent findings against the accused-petitioner and the leave should not be granted unless and until a law point is involved in the case. The learned Chief Prosecutor submitted that after presentation of challan, the statement of the accused under section 242, Cr.P.C. Has already been recorded and the witnesses have been summoned by the Ehtesab Court, therefore, if the accused is released on bail at this stage, he will tamper with the prosecution witnesses. The learned Chief Prosecutor also pointed out that the accused-petitioner is a hardened criminal because he had been misappropriating the Government funds from Government College, Balouch, Government Girls Degree College, Bagh and Elementary College, Bagh, therefore, there is every apprehension that after his release on bail the accused will repeat the offences. The accused-petitioner, according to the prosecution case, after fictitiously signing the cheques used to give it to Munsaf P.W. Who used to draw the same and had been handing over the money to Muhammad Asif, accused-petitioner.
The learned Chief Prosecutor also contended that there is a marked difference between the offence which is committed by an accused against a person or the property than. The offence which is committed against the society and its repercussions will be on the whole society, so such type of accused should not be .Granted the concession of bail. The learned Chief Prosecutor Ehtesab Bureau placed reliance upon the following authorities:--
(1) Imtiaz' Ahmed and another v. The State (PLD 1997 SC 545); and (2) Muhammad Aslam and another v. The State (2002 PCr.LJ 5).
' In a case titled Imtiaz Ahmed and another v. The State (PLD 1997 SC 545), it was observed by the Supreme Court that even in respect of offences not falling under prohibitory clause of section 497, Cr.P.C., the Court may decline to admit an accused to bail if there existed a recognized exceptional circumstances.
' In another case titled Muhammad Aslam and another v. The State (2002 PCLLJ 5), it was observed that accused were apprehended at the spot and it was too early to remark that they had absolutely no dominion over the property. Accused were charged with an offence punishable with imprisonment for life or 10 years and, prima facie, their act amounted to an offence against society.
Besides," the accused belonged to police who are duty bound to prevent and detect the crime, but they hat! Involved themselves in the alleged crime. Discretion as such could not be exercised in favour of such accused at this stage. Bail was refused to the accused in the circumstances. It was further observed in this case that Court would be justified in declining the bail to 'an accused even in respect of offences not falling under the prohibitory clause of section 497(1) of Cr.P.C. If there existed a recognized exceptional circumstance like an offence against the society in which case the refusal of bail will be a rule and grant of bail an exception.
7. While controverting the arguments of Chief Prosecutor Ehtesab. Bureau, Khawaja Attaullah Chak, the learned counsel for the petitioner, referred to the statement of Muhammad Farooq, Junior Clerk, who was the custodian of the accounts. He stated as a witness that he has doubts about Muhammad Asif Khan and Muhammad Munsaf because Muhammad Munsaf had been receiving the amount from the Bank and both Muhammad Asif Khan and Muhammad Munsaf seem to be involved in the matter. He also pointed out that along with the above mentioned two persons some Bank Officer is also involved as in none of the cheques while receiving the amount the signatures of the person receiving the amount were obtained by the Bank Officer. Muhammad Munsaf has also filed an affidavit during the investigation wherein he has stated that the disputed cheques were given to him by Muhammad Asif and he used to get it cashed from the Bank but the Bank Officer never obtained his signatures at the time of receiving the money.
8. After hearing the respective contentions of the learned counsel for the parties I am of the view that points canvassed by both the learned counsel for the parties merit consideration to be resolved in a regular appeal. Leave is, therefore, granted. The office is directed to get completion of file from both the parties and to place the same before the Court after its completion.
9. There is also an application moved on behalf of the accused-petitioner for allowing him the concession of ad interim bail till the decision of appeal. It is contended by Khawaja Attaullah Chak, the learned counsel for the petitioner that both the trial Court as well as the High Court have wrongly observed that accused-petitioner is connected with the commission of offences alleged to have been committed by him. The learned counsel contended that the prosecution story itself shows that against the accused-petitioner it is a case of further inquiry. It is strange enough that the person who has been fictitiously signing the cheques in the name of Principal and mostly sending Muhammad Munsaf to get it cashed from the Bank but in none of the cheques, the concerned Bank officer obtained the signature of the person receiving the amount. This shows that statement of Muhammad Farooq is not without any substance who was the custodian of the account. It has categorically been stated by Muhammad Farooq, in whose custody the accounts were, that he has doubts that the alleged offences have been committed by Muhammad Asif along with Muhammad Munsaf and some officer of the Bank was also involved as by paying such a big amount, the signature of the person who received the amount were not obtained. The initial inquiry report, dated 17-10-2003, which was made by a Committee consisting of Jamila Begum, Zahida Pervaiz, Farrah Naz and Muhammad Hanif, also depicts that the Manager of the Bank seems to be involved in the alleged misappropriation of funds as the Manager stated before the Committee that due to rush every signature is not to be looked into carefully and it does not matter; in fact the entire thing is the cheque and seal of the Principal. The Bank Manager also stated that Muhammad Munsaf, Qasid, used to receive the amount and sometimes used to deposit the same. The Committee also reported that the alleged fictitious signatures on the cheques tally with the signatures of the Principal of the College.
10. It is also astonishing that the Ehtesab Bureau has made out the entire case against Muhammad Asif accused and it is on the record that specimen signatures of Farooq and Muhammad Akhlaque P.Ws.Were obtained and sent to the expert for his opinion but as a matter of fact accepted that the signatures of the main accused. Muhammad Asif, were never obtained nor sent to the expert for his opinion.
11. The whole of the prosecution case is based on the fact that the signatures of Principal were fictitiously made by Muhammad Asif accused and he used to send mostly Muhammad Munsaf and one Muhammad Akhlaque to get it cashed from the Bank but strangely enough the signatures of the Principal which the accused used to sign were not obtained from him and were not compared with the original signatures of the Principal. All the above stated circumstances in my opinion suggest that the case against the accused is one of further inquiry and there is a material suppression of certain facts on the part of the prosecution which remains to be explained by the prosecution, therefore, the matter needs, further probe and inquiry. The accused petitioner is, therefore, entitled to be released on bail not as a matter of grace but as matter of right.
12. The prosecution story rests on the statement of Muhammad Munsaf Khan whose statement was got recorded under section 164, Cr.P.C. By Tehsildar, Magistrate 1st Class Bagh. It is a settled principle of law that the statement of a co-accused against the other accused is to be looked into with a great suspicion because the co-accused who betrays his companion can go to any extent.
Thus a deep caution is needed while relying on the statement of co-accused. Another settled principle of law is that the statement of one accused against another accused cannot be read nor relied upon unless and until it be inculpatory in nature and not exculpatory. The Supreme Court of Pakistan in a case titled Zulfikar Ali Bhutto v. The State (PLD 1979 SC 53), observed at page 53(f) that admission by an accused person of his own guilt, affords some sort of sanction in support of truth of his confession against others as well as himself. Such considerations, however, held not applicable for use against its maker when statement partly inculpatory and partly exculpatory.
' In a case titled Des Raj Sharma v. The State (AIR 1951 Shimla 14), it was observed as follows:-- "Statement of accused as witness in his own cause, use of against co-accused. There is no indication in the language used in section 342 Criminal Procedure Code, that the answers given by one accused can be used against his co-accused. Indeed, section 30, Evidence Act provides an exception to the general rule that a confession is evidence only against the confessor and not against the co-accused in that trial. Statement made by an accused as a witness in his own cause cannot be taken into consideration against co-accused."
' In a case titled State Government Madhya Pradesh v. Hifzul Rahman and others (AIR 1952 Nagpur 12), it was observed that the statement made by an accused is of no value against his co-accused, nor can it be used to fill in the gap in the case of the prosecution.
' In another case titled State v. Asfandyar Wali and 2 others (1982 SCM R D 321), it was observed that confession of co-accused is not evidence against another accused; moreso when the same is retracted and uncorroborated.
13. In the light of what has been stated above, if the accused petitioner furnishes a bail bond in the sum of Rs,3,00,000 to the satisfaction of Registrar of this Court and his personal bond of the same amount, he shall be released on bail till decision of his appeal, provided he is not wanted in any other case or offence. If the needful is not done, he shall remain in the judicial lock-up.