' Brief facts of the case are that a case F.I.R. No,18, dated 7-8-1994 at 3-30 p.m. Under sections 409, 109, P.P.C. Read with section 5(2)47, P.C.A. And section 5 of the Secret Act, 1923 was registered at Police Station F.I.A., Rawalpindi against the accused persons namely Brig. (Retd.) Imtiaz Ahmad Ex.D.I.B. And Major (Retd.) Muhammad Amir, Ex-Director, F.I.A. And others, The contents of the F.I.R.
Shows that the only allegation against the accused is that some official audio cassettes relating to the top secret I.B. Operation were handed over to the accused/petitioner during his posting as D.I.B.
These were never returned to the concerned authority. In addition to that some disclosures of secret were also made by the petitioner/accused.
2. Learned counsel for the petitioner seeks bail for the petitioner on the following grounds:--
(a) That a perusal of the F.I.R. Does not show that any offence had been made out against the petitioner/accused, only some expression of suspicion has been recorded in the F.I.R. Learned counsel contends that any type of suspicion cannot be taken as substitute for legal evidence;
(b) that there is no evidence on record that the alleged audio cassettes were handed over to the petitioner/accused. The procedure laid down by the department is that these cassettes were destroyed after every 150 days. There is every possibility that these were destroyed during the course;
(c) that actually these cassettes should have been with the Deputy Director, Technical. A few Deputy Directors, Technical remained posted during this period;
(d) that as far as the present petitioner is concerned, he resigned on 18-4-1993. At the relinquishment of charge, total charge was handed over but no allegation whatsoever was made out at that time against the petitioner;
(e) that there is a considerable delay in lodging the F.I.R. i,e, 16 months;
(f) that during this intervening period the petitioner was never charge-sheeted and he was never called upon regarding the missing of the audio cassettes;
(g) that the petitioner remained under the custody of F.I.A. For more than two months in connection with this case and the other cases;
(h) that during this period no incriminating material was recovered from the petitioner in spite of the best efforts;
(i) that as far as the F.I.R. Is concerned, there is an allegation that 503 audio cassettes were handed over to the petitioner/accused, which have now been found as not missing;
(j) that during investigation statement has been recorded under section 161, Cr.P.C. Which shows that only 37 cassettes were missing;
(k) that statement of Col. Javaid Zahoor has been recorded under-section 161, Cr.P.C. Wherein no allegation whatsoever has been levelled against the petitioner/accused;
(1) that the offence does not fall under the prohibitory clause of section 497, Cr.P.C. The rule in such like cases is that offence does not fall under the prohibitory clause unless there are some other exceptional circumstances; learned counsel relied upon Criminal Miscellaneous No,637/B of 1995 order, dated 12-10-1995;
(m) that petitioner is sick and presently confined in the hospital though medical treatment has been provided at the expenses of Government; and
(n) that many a times the petitioner had heart attack and his health/physical condition is very precarious. To that effect he states that no body can deny that the petitioner is not under the medical treatment.
3. On the other hand, learned counsel for the respondents opposed the petition on the following grounds:--
(a) That the petitioner was Director of I.B. From 3-8-1991 to 18-4-1993 and he had complete hold over the property etc. Belonging to the department. During this period i,e, his stay in the Department certain cassettes were handed over to him. Learned counsel has given the names of certain persons who were eye-witnesses of this fact;
(b) that as far as the handing over of cassettes is concerned, there is sufficient evidence regarding this fact and prosecution is ready to produce evidence regarding this fact, that these cassettes were never returned to the Department by the petitioner/accused;
(c) that the conflict about the quantum of cassettes, the case of the prosecution is that almost 500 cassettes were given to the petitioner/accused but later it was found that only 37 cassettes were missing. Accepting this fact, learned counsel for the prosecution submits that so far the prosecution is in possession of the evidence to the extent of 37 missing cassettes which were received by the petitioner;
(d) that a question was put to the learned counsel for the respondents that as to whether a specific date can be mentioned/told regarding the missing of the cassettes but the answer was in negative and it is not possible because it is in the interest of the accused;
(e) that a letter was written on 9-6-1994 to the petitioner/accused for return of the cassettes but he refused to answer;
(f) that non-recovery of the cassettes from the petitioner/accused does not damage the prosecution case;
(g) that section 409, P.P.C. Is punishable with imprisonment for life, hence this case falls under the prohibitory clause of section 497, Cr.P.C. And it is incorrect that this case does not fall under the prohibitory clause;
(h) that sickness is not a ground for grant of bail;
(i) that Major (Retd.) Muhammad Amir co-accused is still absconder. Relied upon 1969 SCM R 107;
(j) that petitioner is involved in other four cases; and
(k) that some evidence of the prosecution has been recorded in those cases, number of frivolous applications are/were submitted by the defense with a view to obstruct the smooth progress of the trial.
4. While making arguments in rebuttal, learned counsel for the petitioner contends that so far the prosecution has succeeded in submitting only incomplete challan. According to him there is no such (complete) challan before the Court on which basis proceedings can be commenced especially with regard to the trial of the case.
5. I have heard the arguments of the learned counsel for the parties and perused the record.
Admittedly, the petitioner was serving on a highly responsible post in the Intelligence Bureau of Pakistan. Very sensitive national A matter used to be dealt with by an appointee. The petitioner is to deal with the matters of top secret and if those top secret matters go to unauthorised persons, there is every likelihood of damaging the national cause. Intelligence Bureau was established with a view to safeguard the security of the State. Even no inefficiency can be afforded in such like department. State's solidarity and progress also depend upon the function of this department.
Considerable share of the national budget is spent by this department regarding which the matter cannot be even discussed in the National Assembly of Pakistan. Most faithful and highly reliable officers and staff are allowed to participate in the national affairs, In nutshell, it can be said that the functioning of such like department do contribute towards the survival of Nation. So if any leakage or lacuna is found and proved, may be to a small extent, is to be noticed seriously. So far as the present case is concerned undoubtedly, the petitioner/accused was handed over, as alleged, some very important top secret cassettes. According to the prosecution, some of them are missing. The prosecution has vehemently stated that the cassettes were handed over to the petitioner/accused and they are in possession of strong evidence to prove this fact. If that is the case, then it lies with the defense to rebut this statement and prove that they were not those who caused the missing of the cassettes. I consider that prima facie evidence is with the prosecution which do show that the top secret cassettes were not only handed over to the petitioner but also found to be missing. Delay in lodging in the F.I.R. In such like cases is a natural phenomena because such like matters are enquired into only when there is a disclosure by somebody.
Recovery of the alleged cassettes if the prosecution failed so far in this regard, it may not be a damaging factor for the prosecution in to because it is up to the petitioner/accursed to lead to the recovery. When once it is proved that some cassettes were handed over then in a way the onus shifts on the other side, though we believe that the onus of proving the criminal cases were always on the shoulder of the prosecution. The nature of allegations is such that if proved, the offence will also fall under section 409, P.P.C. Which is punishable for more than ten years,
6. Learned counsel for the petitioner has also taken a ground that the petitioner is suffering from heart trouble since long and is physically not capable of bearing the hardship of confinement.
Admittedly the petitioner is being medically treated by very responsible medical officers and the medical expenses are also borne by the State. He has been provided all the facilities of medical treatment at Government expenses. Hence there is no question of making out a ground for bail on this score. The other grounds taken by the learned counsel folic the petitioners have been rebutted by the prosecution. So far there is sufficient evidence on the record to believe against the petitioner/accused and for that, he is not entitled to the concession of bail. It is not appreciable to submit frivolous applications particularly with the intention to obstruct the smooth progress of the trial. Because of such delaying tactics, some persons frustrate the very purpose of justice.
7. In view of the above, the, bail petition is dismissed. However, the prosecution is directed to submit the complete challan as soon as possible and get the trial concluded within shortest possible time.
Any observation made by this Court about the merits of the case shall not be taken into consideration during the trial.