' The applicant Atta Muhammad Sub-Engineer is seeking bail in Crime No,3 of 2001 under sections 467, 468, 420, 217, 409/34, P.P.0 read with section 5(2) Act-II of 1947 registered at Police Station A.C.E., Sanghar. The bail application moved on behalf of the applicant was dismissed by the learned Special Judge Anti-Corruption (Prov1) Hyderabad on 21-4-2001.
' The brief facts of the prosecution case are that this case was registered as a result of raid conducted on the office of Executive Engineer Provincial Buildings Division, Sanghar on 30-9-2000, in presence of other persons named in the F.I.R. The record was secured under mashimama I. On the same date raid was also made in the office of Executive Engineer Education Works Division Sanghar and Record was secured under Mashirnama No,II. After securing the relevant record the site was shown by Executive Engineer Abdul Hameed Chand of Education Works Sanghar in presence of other persons named in the F.I.R. The site was inspected by M.A Arbab Technical Officer/Executive Engineer, Public Health Engineering Division Sanghar on 4-10-2000. Technical Officer submitted his report which is reproduced as under: TECHNICAL REPORT {{TABLE}} #TBS Date of Start: Date of Completion: Incumbency: 29-1-1986 28-1-1987 Mr. Am Muhammad Shaikh Sub-Engineer. Mr. Nabi Bux Qazi Assistant Engineer. Mr. Nadeem Ahmed Assistant Engineer Mr. Zulfiqare Haider Executive Engineer Technical Sanction: Estimate Sanctioned by Chief Engineer (B) Hyderabad vide No.84- 85, Polytechnic SGR (ii) 105, dated 21-11986 for Rs.20,83,550.
Name of Work (2) Construction of Govern- ment Civil Technical Block of P.T.I. Sangar.
Agency M/s. Muhammad Qasim Company Dadu Date of Start 29-1-1986 Date of Completion 28-1-1987 #TBE Ijaz Akhtar v. The State 1978 SCM R 64 and Saeed Ahmed v. The State 1996 SCM R 1132 ref. Noorul Haq Qureshi for Applicant. Muhammad Azim Panhwar for the Name of work: I.
Agency: Construction of Govern- ment Polytechnic Institute Sanghar (Administration Block)
M/s Muhammad Shoaib Khan & Sons Incumbency Mr. Atta Muhammad Shaikh Sub-Engineer Mr. Nabi Bux Qazi, Assistant Engineer Mr. Nadeem Ahmed.
Assistant Engineer Mr. Zulfiquar Haider, Executive Engineer Technical Sanction Estimate Sanctioned by Chief Engineer Buildings Department Hyderabad for Rs,18,73,770 Name of Work 3 Construction of Govern- ment Polytechnic Institute Electrical Block $ Agency M/s. Hussain & Company Nawabshah Date of Completion 28-1-1987 Incumbency Mr. Ana Muhammad Shaikh, Sub-Engineer Mr. Nabi Bux Qazi, Assistant Engineer Mr. Nadeem Ahmed, Assistant Engineer Mr. Zulfiquar Haider, Executive Engineer Technical Sanction Estimate Sanctioned by Chief Engineer Buildings Department Hyderabad vide No,84- 85 Poly Technical SGR (II)/105 dated 21-11986 for Rs,17,34,350 {{TABLE}} ' Above subjected works were inspected on 4-10-2000 alongwith representative of Anti-Corruption Establishment Sanghar Provincial Buildings Division Sanghar and Education Works Division Sanghar named in the Mashirama prepared at site by A.C.E Sanghar and made following observations:
1. The structure appears highly deteriorated and old as compared to its actual age.
2 All the roof slabs are in miserable condition R.C.0 cover is dropped in major portion and the M.S. Bars are exposed. In my opinion all the roof slabs are in dangerous condition and are required to be replaced completely. Only the slabs of wood work shop in Civil Technology Block and comprehensive work shop in Electrical Technology Block are intact which were relaid by Education Works Department in 1986-87.
3. Flooring plain as well as mosaic is in very bad condition not laid in channels as required and poor ratio has been used.
4. That all the sanitary fixtures used are of inferior quality.
5. Surface finishing of super structure is very poor and poor ratio used in plaster.
6. That major portion of compound wall is collapsed and the remaining length is filled and is about to collapse at any moment. Only the portion alongwith main gate etc. Which is reconstructed by Education Works Department is intact.
7. That R.C.C. Cover slab of underground water tank is badly deteriorated and same have no strength.
8. That cracks are visible in the columns and water retaining body of the high service reservoir .
9. Appearance and out look of all the components of structure as revealed thathighly brackish water is used during the construction in all the three works throughout and either no prior curing is done or brackish water is used for the purpose.
' The buildings constructed under all the three works are already declared dangerous by Education Works Department.
' In his opinion the total expenditure incurred under all the three contracts is wasted and thus, loss to Government.
' The Technical Officer Mr. M.A. Arbab in his Letter No, S.G./1394, dated 17-10-2000 intimated loss of Rs,4,10,898 in this respect and he has made the following officers responsible for causing loss to the Government in collusion with the Contractor Muhammad Shoaib Khan & Sons. {{TABLE}}
1. Mr. Atta Muhammad Shaikh, Sub-Engineer, 2.
3.
Mr. Nabi Bux Qazi, Engineer, Mr. Nadeem Ahmed, Engineer, Mr. Zulfiquar Hyder, Engineer. Assistant Assistant Executive {{TABLE}} ' The accused, therefore, committed offence punishable under sections 467, 468, 420, 217, 409, 34, P . P . C. Read with section 5(2) A.C.E-II of 1947. Hence this F.I.R.
' Learned counsel for the applicant contended that the prosecution story appears to be false, fabricated and concocted. He has further contended that after a long period it is quite impossible to ascertain such things in the manners alleged in the F.I.R. He has further contended that the report of the expert suffers from illegalities and irregularities which have been wrongly relied upon.
' According to the learned counsel for the applicant it is requirement of the rules that officials concerned and contractors are only responsible for three years after handing over the possession of newly constructed buildings, thereafter it would be the responsibility of occupant and stability depends upon its maintenance, as well as other factoRs, He has further contended that there is absolutely no substance at this belated stage to involve the present applicant with such old construction. He submitted that the very purpose of lodging the F.I.R against the applicant malign him and to cause him humiliation, insult and disgrace in the eyes of public. He has contended that there is no other material to implicate the applicant in this case and only he has been involved due to departmental enmity. The learned counsel for the applicant submitted that entire evidence is based on documents which are already in possession of the prosecution and there is no possibility of any tampering such evidence. He lastly argued that the applicant is a respectable public see and diabetic and cardiac patient and a man old age and his continuous remaining behind the bars can be hazardous for his health and life.
' The learned State counsel has strongly opposed the bail application on the ground that applicant has committed a serious offence and caused heavy loss to the Government in connivance with the other accused persons. The learned counsel has submitted that the possession was given to concerned department on "9-3-1989 and according to him the certificate available on police file shows the same was handed over in sound condition. Lastly he argued that the medical certificate placed on record cannot be relied upon, however, he submits that no material has been placed on record to show that necessary treatment is not available.
' I have gone through the material available on record and have also considered the arguments advanced by the learned counsel for the parties. The case of the prosecution is based upon the report submitted by the Technical Officer/Executive Engineer, Public Health Engineering .Division.
The site was inspected on 4-102000 and subsequently F.I.R was registered on 23-2-2001. This report shows that an opinion has been expressed by the Technical Officer that the total expenditure incurred under the contract of construction of Polytechnic. Institute Sanghar (Administrative Block), which is Rs,20',83,550 has been wasted' and thus, caused loss to the Government. Subsequently, this Technical Officer under his letter dated 17-10-2000 intimated loss of Rs,4,10,898 in respect of this contract and made the accused persons responsible for causing loss to the Government in collusion with the contractor namely M/s Muhammad Shoib Khan & Sons.
' It is also an admitted position that . The construction work started on 29-1-1986 and completed on 28-1-1987 and thereafter the possession given to the concerned department in March, 1989.. It is nowhere alleged by the prosecution that what specific role has been played by the applicant and gained any benefit.
' The point involved in the present case would be determined by the trial Court after the evidence is recorded and P.Ws. Are cross-examined, that the prosecution case falls within the ambit of sections 409, 467 and 468, P.P.C.
' The entire case of the prosecution is based upon documentary evidence which is already in possession of the prosecution as such there is no possibility of any tampering with the evidence.
' The Honourable Supreme Court in the case of Ijaz Akhtar v. The State reported in 1978 SCM R 64, held that the fact that amount allegedly embezzled by accused being large, is no ground for refusing bail. The law laid down by the Honourable Supreme Court in the case of Saeed Ahmed v.
The State (1996 SCM R 1132) that case against the accused entirely depended upon documentary evidence which is in possession of prosecution and there is no possibility of tampering with the same, granted bail to the accused.
' From the above stated facts and case law I am of the view that the present case is of further inquiry and that the entire material is in possession of prosecution, as such, applicant is entitled to bail. The applicant/accused be released on furnishing solvent surety in the sum of Rs,2,00,000 and P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court.
' These are the reasons for short order, dated 7-5-2001 whereby the applicant was admitted to bail.