SHAHNAWAZ TARIQ, J.---This single order will dispose of Criminal Bail Applications Nos.S-292 of 2013, filed by applicant Nasrullah Panhwar, and S-295 of 2013, filed by applicant Ghulam Rasool Mallah, arising out of Crime No,05 of 2013, lodged at Police Station ACE, Naushahro Feroze, registered under Sections 409, 420, 467, 468, 471, 34, P.P.C. R/W Section 5 (2) Act-II of 1947.
2. Relevant facts spelt out from the FIR lodged by SIP Suhail Ahmed Waggan, E & ACE, Sindh are that funds for 2011-12 were allocated to Executive Engineer, Public Health Engineering Division, Naushahro Feroze, for construction of drain Nala from Railway Phatak to Main disposal middle of the Road Moro City; first work order dated 30.05.2012 for Rs,1,64,00,000/- was issued to Messrs Malhar Construction Company, and second work order dated 30.05.2012 for Rs,2,00,00,000/- was awarded to contractor Nasrullah Panhwar. Subsequently, Technical Officer in his report concluded that at both sites, the executed work existed 1122 running feet and 1333 running feet instead of 1429 and 1740 running feet, respectively. Accused persons namely Muhammad Ummar Siyal, Executive Engineer, Public Health Engineering Division, Naushahro Feroze; Syed Nadeem Pervez, AEN PHED Sub-Division Moro; Athar Hussain Memon, Sub-Engineer; Nazeer Ahmed Buriro, Sub-Engineer; Ghulam Rasool Mallah, contractor Malhar Construction Company, and contractor Nasrullah Panhwar, in connivance with each other with common interest and ulterior motives awarded work orders to contractors of M/S Malhar Construction Company and Nasrullah Panhwar on 30.05.2012, and made full payment to them without execution of work on 15.6.2012, by managing fake M.Bs and bills. Thus, they put the public exchequer into loss to the tune of Rs,34,41,690/- and Rs,46,78,161/- respectively. Such acts of accused persons are criminal breach of trust, cheating and forgery punishable under sections 409, 420, 467, 468, 471, 34, P.P.C. R/W Section 5(2) Act-H of 1947.
3. Learned counsel appearing on behalf of applicant Nasrullah Panhwar contended that applicant is innocent and has been falsely implicated by the complainant; that allegations leveled against applicant are false and baseless and there is no material available on record regarding misappropriation of public funds by applicant as such section 409, P.P.C., is not applicable in the instant case and complainant has not recovered any forged document which might have been used in the alleged offence; hence ingredients of sections 467 and 468, P.P.C., are not attracted in present case; that alleged offence is not punishable with death or imprisonment for life; that trial Court has already granted post arrest bail to 3 main official co-accused who had assigned work order and contract; that applicant has carried out construction work as per work order and there is a dispute regarding measurement of the covered area which requires serious consideration and such allegations could not be determined without recording evidence; that after submission of Challan, charge has also been framed against accused persons and since 2013 applicant is attending the trial Court regularly and has not misused the concession of pre-arrest bail. Reliance is placed on the case law reported as 2012 YLR 2913, 2013 PCr.LJ 318, 2000 SCM R 1072, PLD 2006 Karachi 1765, 2011 SCM R 1319, 2000 YLR 2925, 1985 PCr.LJ 569; 2000 YLR 852, 2010 YLR 2299 and 2011 YLR 1599.
4. Learned counsel for applicant Ghulam Rasool Mallah submitted that applicant is innocent and has been falsely implicated by complainant as neither applicant was assigned any contract by official co-accused nor he has any concern with Messrs Malhar Construction Company, which is owned and managed by his brother Meeral, and cheques were also issued in the name of said company, which were deposited in the account of his brother but prosecution has not imp leaded him as an accused in present case; that official accused, who had assigned the contract, have already been granted bail by learned trial Court; that there is no iota of evidence that the applicant was involved in commission of alleged offence nor any document was issued in his favour nor he had signed any paper regarding subject contract; that if interim pre-arrest bail, already granted to applicant, is not confirmed, he will be arrested and humiliated for the offence which he has not committed.
5. Learned APG contended that applicants have misappropriated the Government funds and did not carry out work as per requirements of work order. However, he candidly submitted that investigation has been completed and applicants are no more further required for investigation and prosecution has not examined any witness in trial since the year 2013.
6. I have heard learned counsel for the parties and scanned the material available on record which emanate that allegedly official co-accused, without approval of competent authority, have assigned work order to applicant Nasrullah being contractor and payment of Rs,20,000,000/- was made in his favour, while other work order was assigned to Messrs Malhar Construction Company owned by Meeral Mallah, brother of applicant Ghulam Rasool Mallah, and payment of Rs,1,64,00000/- was made in favour of M/s Malhar Construction Company. Consequently, both applicants carried out the respective construction works, however, Technical Officer inspected the site and submitted a report that applicants have not constructed as per the terms and conditions contained in work orders issued to them.
7. It is significant to mention that 3 main official co-accused namely Muhammad Umar, Nazeer Ahmed and Ather Hussain, who allegedly assigned work orders to both applicants without approval of the competent authority, have already been granted bail by learned trial Court vide order dated 20.06.2013. Indeed, after completion of investigation, Challan was submitted by investigation officer and charge was framed on 28.04.2014, by trial Court and applicants are facing their trial regularly but prosecution has failed to examine even a single witness to substantiate the charge against applicants without any justification while PWs are officials and to procure their attendance is not a difficult task for the prosecution. Admittedly, both applicants have been granted interim pre-arrest bail in the year 2013, and since then they have not misused the concession of bail while prosecution case is purely based on documentary evidence which is in the possession of prosecution and there is no apprehension of tampering with the prosecution evidence. Though prosecution version is controverting the plea of defence regarding construction work carried out by applicants, but the question of quality of work and measurement of constructed area could not be determined without recording evidence of witnesses and thoroughly examining relevant documents. Conversely, prosecution has not moved any application for cancellation of bail granted to 3 main official co-accused and even instant bail applications are pending since the year 2013, and prosecution has also failed to pursue the same diligently for their timely disposal.
7. Considering the facts and circumstances referred supra, declining pre-arrest bail at this stage will not serve any useful purpose. Consequently, in the prime interest of justice, interim pre-arrest bail granted earlier to the applicants vide orders dated 06.06.2013, and 07.06.2013, respectively, is confirmed on same terms and conditions, and they are directed to appear regularly before learned trial Court. However, in case of misuse of concession of bail, learned Special Judge Anti- Corruption, Sukkur, is authorized to recall the bail granted to applicants by this Court and initiate action against their surety.