JAHANZEB KHAN, J. Consequent upon refusal of concession of bail to the accused/petitioner namely Nadeem Farid son of Fareen Khan, by the learned Sessions "Judge/Incharge Anti- Corruption Gilgit, vide order dated 12-03-2024 passed in B.A No.11/2024, the accused/petitioner has approached this Court by filing the petition in hand under sections 161, 471/468/465/420/417/409/406, P.P.C read with section 5(2), PCA 1947, for relief of post arrest bail in case FIR No.05/2024 registered at Police Station Anti-Corruption Gilgit.
2. Brief story of prosecution as elucidated in the FIR is that the complainant namely Amnaullah resident of Paltani Muhallah, President Gilgit-Baltistan Traders Development Organization, got registered an FIR bearing No.05/2024 under sections 161, 471/468/465/420/417/409/406, P.P.C read with section 5(2) PCA 1947 against the accused/petitioner along with co-accused registered at PS Anti-Corruption Gilgit.
3. Initially, the accused/petitioner filed a Bail Application bearing No.11/2024 under the section 497, Cr.P.C before the learned Sessions Judge/Incharge Anti-Corruption Gilgit, which was dismissed by the learned Judge Anti-Corruption Gilgit, after hearing contentions of both the parties. Feeling aggrieved from the said order the accused/petitioner has preferred this petition seeking his post arrest bail.
4. Learned counsel for the petitioner/accused M/s. Amjad Hussain, Adnan Hussain and Waqas Ahmed Advocates argued that the accused/petitioner is innocent and the FIR has been lodged against the accused/petitioner mala fidely to implicate him in the instant case as there is no independent and convincing evidence available on record to connect the petitioner/accused with the commission of offences mentioned in the FIR. Learned counsel for the accused/petitioner Submitted that the present accused/petitioner has no connection with the alleged allegations, the accused/petitioner is a Store-Keeper and he was not responsible for the alleged commission of offences as described in the FIR. They argued that the items of Local Purchase (LP) have no direct link with the Store-Keeper rather LP items are directly linked with the Contractor and the patient and the beneficiary of the alleged transaction is one Kamil Jan, who has been enlarged on bail by the learned Special Judge Anti-Corruption Gilgit vide order dated 14-03-2023. Learned counsel submitted that the co-accused Dr. Ahmed Hassan Medical Superintendent City Hospital Gilgit and contractor Kamil Jan who were also nominated in the promptly lodged FIR but interestingly the have been exonerated and they have been granted bail, therefore, rule of consistency also fully attracts in the instant case in favor of the accused/petitioner and the accused/petitioner is entitled for concession of bail. He further submitted that all the alleged offences don not fall within the ambit of the prohibitory clause of section 497, Cr.P.C, except section 409, P.P.C which does not attract in the instant case and challan of the case been submitted before the trial court and investigation of the case is completed and the petitioner/accused is no more required for further investigation, therefore, Keeping the accused/petitioner behind the bars would serve no fruitful purpose. Lastly, the learned counsel submitted that the petitioner/accused will never abuse or misuse the bail facility if this Honourable Court will release him on bail by accepting this petition.
With these submissions he prayed for acceptance of the instant petition.
5. Conversely, learned Special Prosecutor for the State controverted the arguments advanced by the learned counsel for the accused/petitioner and contended that the on written complaint of the complainant namely Amanullah President Gilgit-Baltistan Traders development Organization, an inquiry was conducted against the MS Ahmed Hassan, Contractor Kamil Jan and Store-Keeper Nadeem Farid, as they were directly nominated by the complainant in his written complaint and as sequel to it the concerned officials/I.O of Anti-Corruption Department sought approval from the Chief Secretary Gilgit-Baltistan regarding the Local Purchase, which is for poor and destitute people who are admitted to the hospital for surgical procedure etc. Learned Special Prosecutor argued that the Store-Keeper is mainly responsible for the said corruption as he has pivotal role in the concerned Department/Hospital. All the receipts/Billats bear signatures of Store-Keeper and the MS which is an essential regulation/procedure of the department. They further submitted that all the offences are non-bailable and offence under section 409, P.P.C entails imprisonment for life or imprisonment for a period of 10 years and falls under the purview of prohibitory clause of section 497, Cr.P.C. They further submitted that the petitioner/accused is directly nominated in the promptly lodged FIR. Statement of the present accused/petitioner and the material available on record fully connects the accused/petitioner with the commission of alleged offences and prima facie the prosecution has sufficient evidence in support of its version. With these submissions, he prayed for dismissal of this bail petition to meet the ends of justice.
6. We considered the arguments advanced by the learned counsel for the parties with due care and perused the available record and deliberated.
7. Tentative assessm ent of the record transpires that the present accuse/petitioner, has been implicated in the alleged offences which prima facie not attracted against the present accused/petitioner. There is no denial of the fact that MS City Hospital Gilgit was the primarily accountable for the aid embezzlement and corruption according to the rules, being sole custodian of the concerned department, but it seems that the same liability has been malafidely/dishonestly shifted to a junior staff; who was even not concerned/ministerial staff which is against the law/rules and this dishonest act of the concerned authority creates serious doubts and dents in the case of the prosecution. Admittedly and surprisingly, the main co-accused MS City Hospital Gilgit Ahmed Hassan and contractor Kamil Jan, who are directly nominated in the promptly lodged FIR and allegedly specific role has been attributed to them by the complainant, have been enlarged on bail by the learned trial court/Special Judge Anti-Corruption Gilgit, which, also attracts the universal rule, "Rule of Consistency" in favor of the present accused/petitioner. Undoubtedly, all the alleged offences are bailable, except the offence under section 409, P.P.C, which falls within the ambit of prohibitory clause of section 497, Cr.P.C, which prima facie does not attract in the instant case to the extent of the present accused/petitioner. Furthermore, the complainant Amanullah present in Court appeared before the Court on his own accord and stated at bar that he has neither alleged nor nominated the present accused/petitioner in the FIR for the commission of alleged offences and went on to say that he has no complaint against the present accused/petitioner. Perusal of the record reveals that the one of main accused/Cashier is still at large and the respondent/State has taken no action against him. When the learned Special Prosecutor was confronted with the particular question regarding investigation/arrest of the Cashier, he replied that the cashier has not been arrested so far. It is also pertinent to mention here that no specific amount or figure of alleged embezzlement amount by the present accused/petitioner has been mentioned in the FIR or anywhere in the record. Surprisingly the instant FIR has been lodged with an inordinate and unexplained delay of almost four years, which creates serious dents and doubts in the prosecution story. The whole case of prosecution is based on documentary evidence, which is already in the prosecution file. The same when inquisitioned, the prosecution admitted that all relevant required material/record already been taken by them in their possession and the present petitioner is no more required for further investigation purpose.
There is no chance of tempering of record of the case. Concession of bail cannot be withheld by way of punishments. Accused cannot be kept behind the bars for an indefinite period, while co- accused has been granted bail. Connection of the accused with the commission of alleged offences to be determined by the trial court after recording the evidence. In the above circumstance, the matter in hand requires further probe into the guilt of the accused/petitioner. In such like cases grant of bail is a rule and refusal is an exception. In the wake of above circumstances, we are failed to find any exceptional reason to refuse the concession of bail to the present accused/petitioner. The accused/petitioner is behind the bars for last couple of months, waiting for commencement of the trial of the case. Investigation of the case is completed. In the above circumstances, we are of the firm view that the case of the accused/petitioner squarely falls within the ambit of Section 497(2), Cr.P.C, entitling the present accused/petitioner for concession of post arrest bail and the same is allowed.
8. Above are the reasons of our short order dated even, which reads as under: "For reasons to, be recorded later on, in the detailed judgment, this Petition bearing No. 83/2024 under sections 161,471/468/465/420/417/409/406, P.P.C read with section 5(2) PCA, 1947 vide FIR No.05/2024 registered at PS Anti-Corruption HQ, is allowed. The accused/petitioner is directed to be released from judicial lock-up, if not required in any other case, subject to furnishing of bail bonds in the sum of Rs. 10,00,000/- (ten lac) with two local sureties each in the like amount to the satisfaction of the learned Special Judge Anti-Corruption Gilgit."
9. The observations made hereinabove are tentative in nature, which shall not prejudice the trial of the case and the learned Trial Court is directed to decide the case strictly on merits in accordance with law. File revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.