SHAHNAWAZ TARIQ, J.---By this common order, I intend to dispose of Criminal Bail Applications Nos.
886 and 887 of 2015, filed by applicants Azmatullah, Muhammad Sachal and Mir Muhammad for their enlargement on post arrest bail respectively, arising out of Crime No,G0-22 of 2015 lodged at P.S. ACE, Ghotki, under section 409, 465, 468, 471, 477-A, 34, P.P.C. Read with 5(2)) Act-II, 1947, as their earlier bail application was dismissed by the Court of learned Special Jude Anti-Corruption, Sukkur vide order dated 09.11.2015.
2. Relevant facts narrated in FIR are that applicants along with other officials have allegedly mis- appropriated Government amounts worth Rs,53,62,980/- and Rs,2,00,000,00/-, in the year 2011-12, allocated for Public Sector Development Program, 2011-12; hence instant FIR.
3. Alam Sher Bozdar, learned counsel for applicant Azmatullah Kolachl contended that applicant is innocent and has been falsely implicated in instant case, as he was not posted during the period of alleged offence in the office of Mirpur Mathelo Division nor was holding such charge, but he was posted as Accounts Clerk vide Office order dated 09.03.2011 and Ghulam Yasin was transferred and posted in Mirpur Mathelo Division vice versa; that during the investigation no iota of evidence has been brought on record against the applicant by the Investigating Officer to connect him with the commission of alleged offence, with which he is charged.
4. Mr. Zulfiqar Ali Naich, learned counsel for applicants contended that applicant Mir Muhammad was posted as Tender Clerk in Mirpur Mathelo Division, while applicant Muhammad Sachal was posted as AEN, Sub-Division, Daharki and neither applicants had' issued any cheque nor they had any access to relevant record of the office; that XEN Waqar Qadri issued cheques for Rs,53,62,890/- and said amount was re-deposited in Govt. Treasury and such fact has also been mentioned in investigation by ACE; that in the financial year 2011-2012, an amount of Rs,50,00,000/- was released for said project, hence allegations of release of Rs,2,00,000,00/- have no legal substance.
5. Learned APG considering the material available on record, extended no objection for grant of bail to all the applicants. However, Investigating Officer Mukhtiar Hussain Lashari, Circle Officer, candidly submitted that no direct evidence has been collected against present applicants and investigations against the main accused Waqar Qadri, XEN, Irrigation Mirpur Mathelo Division, are under process and final Challan will be submitted subsequently.
6. Heard the arguments of learned counsel for the parties and perused the material available on record, which emanate that applicants have been apprehended in connection with mis- appropriation of Govt. Funds amounting to Rs,53,62,980/- and Rs,2,00,000,00 allocated for Public Sector Development Program 2011-2012. Indeed, applicant Azmattullah has controverted his posting during the period of commission of the alleged offence and he has produced copy of office order dated 09.03.2011, issued by Director, Ghotki Feeder Canal Area Water Board, Ghotki, that he was posted as Accounts Clerk, and Ghulam Yasin was transferred and posted in Irrigation Mirpur Mathelo Divison, against him vice versa and such fact is also admitted by Investigating Officer, which requires serious consideration.
7. From the perusal of letter dated 03.04.2012 issued by Director Ghotki _Feeder Canal and Water Board Ghotki to Executive Engineer, Mirpur Division (Irrigation) at Mirpur Mathelo reflects that total amount of Rs,50,00,000/- was allocated for the year 2011-12 and out of which an amount of Rs,25,00,000/- was released by the concerned authority, hence the allegations regarding mis- appropriation of Rs,2,00,000,00/- by the applicants also requires serious consideration.
8. Learned counsel referred to Page-45 of the file, which is letter dated 21.01.2013, issued by Inspector, E & ACE Sindh, Karachi to P.S.0 to Chairman E & ACE, Sindh, Karachi, wherein it is mentioned that an amount of Rs,53,62,980/- was drawn from Security Deposit Head on 22.05.2012 and same was again deposited in Government Treasury on 28.05.2012, within the period of 6 days.
Astonishingly, still the prosecution has not been able to implicate the main accused Waqar Qadri, XEN, Irrigation Mirpur Mathelo Division, who being the competent authority approved the cases for the alleged payments andunder his directions cheques were prepared which were signed by him, and despite above facts, his name is not mentioned in Interim Challan under garb of a letter dated 26.10.2015, issued by Director, Anti-Corruption Establishment, Sindh, Karachi with reference to the decision given by ACC-1 in its meeting dated 06.10.2015.
9. Indeed, applicants were neither in commanding position in the office of Irrigation Mirpur Mathelo Division nor they issued any cheques nor they were signatory of the cheques whereby the Govt.
Funds were allegedly mis-appropriated. Prosecut'un's entire case depends upon the documentary evidence, which has already been collected during the investigation and same is in the custody of prosecution, and no relevant record has been placed before this Court regarding their involvement in commission of alleged offence, hence there is no apprehension of tampering with prosecution evidence, and it is for the learned trial Court to record evidence and ascertain truth. Reliance is placed on the case of Saeed Ahmed v. The State (1996 SCM R 1132). As such allegations leveled against the applicants do not fall within the restraining clause of Section 497, Cr.P.C. A present Interim Challan has been submitted and applicants are no more required further for investigation and their further detention will not serve any useful purpose. It is well established that while dealing with the question of bail, the Court has to consider the aspect of minimum quantum of sentence provided for the alleged offence in the schedule.
10. Considering the above circumstances, applicants have succeeded to make out a case of further enquiry as envisaged under Section 497(2), Cr.P.C. Consequently, applicants are admitted to post arrest bail subject to their furnishing solvent surety in the sum of Rs,100,000/- each and P.R Bond in the like amount to the satisfaction of the learned trial Court.
11. The observations made supra are tentative in nature and learned trial Court shall decide the case strictly on merits.