' MIAN FASIH-UL-MULK, J.--- Petitioner, Mehar Jamal is involved in case F.I.R. No,17 of 2013 dated 25- 3-2013 under sections 406/409/420/471 P.P.C.' read with section 5(2) P.C. Act, 1947, Police Station HA/ACC, Peshawar. He was earlier refused bail by the trial Court as well as this Court vide order dated 15-7-2013, whereafter petitioner and other co-accused Muhammad Israr filed Criminal Petitions before the apex Court for theit release on bail. The august Supreme Court of Pakistan vide judgment/order dated 7-1-2014 set aside the impugned orders and remanded the cases back to this Court to be heard and disposed of on merits because the Court was more concerned with the manner of investigation and prosecution of criminal cases generally but had not attended to the facts of the case for the purpose of determining whether or not the petitioners were entitled to bail.
2. Besides, by way of impugned order Bail Petition No,882-P of 2013 filed by Abdul Karim was also dismissed but he had not approached the august Supreme Court of Pakistan. He has now filed fresh application bearing Criminal Miscellaneous No,222 of 2014 for his release on bail due to rejection of his earlier bail petition through a single judgment, which has been set aside by the apex Court. Likewise, earlier Bail Petition No,1095-P of 2013 filed by Muhammad Tariq, Ghulam Khalil and Gohar Ali, petitioners was also dismissed. Accused Sikandar Khan in the same F.I.R. Has been granted bail by the learned Special Judge Anti-Corruption (Central) vide order dated 31-7-2013 and now the State through Deputy Attorney General, Peshawar has filed Bail Cancellation Application No,1281-P of 2013. As all the cases arise out of one and the same F.I.R., therefore, the same are proposed to be disposed of through this single judgment in Criminal Miscellaneous No,881-P of 2013.
3. Brief facts of the case are that on the written complaint of Tajul Amin Accounts Officer (Admn)
CMA Office, Peshawar, the FIA registered case vide F.I.R. No,17 dated 25-3-2013, initially against 22 persons, for fraudulently withdrawing an amount of Rs .77 .440 million through forged vouchers/bills on account of hair cutting, washing allowance,-washing public clothing, telephone, ATG, MEG, Stationery etc. During different periods. Petitioners and accused-respondent being posted as Controller Military Accounts, Senior Auditors and Junior Auditors during the relevant period in the M & D Branch were held responsible for the same and were booked for the offences along with other accused. It may be mentioned here that all the concerned officers/officials were also proceeded against departmentally and were either dismissed from service or retired.
4. Learned counsel for petitioners contended that if on one hand the case has not been properly investigated and registered, on the other hand all the petitioners, in the inquiry proceedings conducted by the department, were found responsible for their mere negligence without any proof of receiving the embezzled amount. According to them, accused-respondent Sikandar was an officer in Grade-20 for whom the competent authority was the Secretary under the Federal Investigation Agency Inquiries and Investigation Rules, 2002 and in such an eventuality permission was required to have been obtained for the rest of officials too from the Secretary Defence, which legal requirement has not been complied with in this case. Further stated, that section 5 of the Prevention of Corruption Act, 1947 deals with criminal misconduct which provides that a public servant is said to commit the offence of criminal misconduct if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification or any valuable thing without consideration or if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control or if he by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage or if he or any of his dependents, is in possession, for which the public servant cannot reasonably account, of pecuniary resources or of property disproportionate to his known sources of income. None of the petitioners can be bracketed under any clause of section 5 with regard to criminal misconduct, as the only charge against them is negligence for which they have been awarded sufficient punishment either through dismissal from service or retirement. Learned counsel further argued that mere negligence of petitioners in the performance of their duties would also not fall under sections 406/409/420/471, P.P.C. Because they were neither entrusted with any property or dominion over it, or committed cheating or fraudulently or dishonestly used as genuine any document. Moreover, the offences with which petitioners are charged also do not fall within the prohibitory clause of section 497, Cr.P.C. And petitioners on this score too are entitled to be released on bail.
5. Learned counsel for the State opposed arguments of learned counsel for petitioners and stated that all the petitioners including accused-respondent Sikandar have facilitated the commission of offence in favour of contractors by receiving their respective commission and due to embezzlement of a huge amount of 77 million from the exchequer they are not entitled to the concession of bail even if the offences with which they are charged do not fall within the prohibitory clause of section 497, Cr.P.C.
6. I have heard arguments of learned counsel for the parties and have also perused record of the case.
7. No doubt, huge loss to the Government exchequer has been caused in this case but who has actually committed the fraud is yet to be established by the prosecution at trial. A look at the inquiry report placed on file would reveal that main character in the case was on Wali Ayaz, Ex- Accounts Officer, who has been granted bail by the learned Special Judge Anti-Corruption and the State has not questioned his release on bail by filing bail cancellation application before this Court.
Accordingly to the said inquiry, petitioners had not pinpointed the alleged embezzlement and thus were responsible for their negligence in the performance of their duties. In these circumstances, the prosecution has yet to establish its charge against them under the relevant sections of law.
Moreover, the offences with which petitioners are charged, except section 409, P.P.C., also do not fall within the prohibitory clause of section 497, Cr.P.C.
' The case entirely depends on documentary evidence in possession of prosecution and there is no possibility of tampering with such evidence if petitioners are bailed out.
8. For the aforesaid reasons, Bail Applications No,881-P of 2013, No,1061-P/ 2013 No,222 of 2014 and No,236-P/2014 are accepted and the petitioners are allowed bail provided they furnish surety bond each in the sum of Rs,5,00,000 (Rs, Five lacs) with two sureties each in the like amount to the satisfaction of trial Court. The Bail Cancellation Appilcation. No,1281 of 2013 is dismissed.