' Applicant Chuttal Khan seeks post-arrest bail in a case being Special Case No,182 of 2000, Re: State v. Syed Murad Ali Shah and others pending trial before the Court of learned Special Judge, Anti-Corruption (Provincial), Sukkur as a result of F.I.R. No,GO23 of 2000, Police Station A.C.E.
Naushero Feroze registered under sections 161, 409, 420, 468, 471, 171, 477-A, 34, P.P.C. Read with section 5(2) of Act II, 1947 on 23-6-2000. His bail plea having been rejected by the trial Court, the applicant has approached for the same relief of bail.
2. The case of prosecution briefly stated is that on 10-6-2000, F.I.R. No,132 of 2000 at Police Station Artillery Maidan, Karachi was registered and for want of jurisdiction same was transmitted through Deputy Director, Anti-Corruption Establishment, Sukkur to A.C.E., Nausheroferoz, which was incorporated verbatim and numbered as above.
3. Above F.I.R. Was drawn on the written complaint of one Qamaruddin Shaikh Exh.S.S.I./O.S.D. Of S.A.S.O (Sindh Agricultural Supplies Organization).
4. The written complaint of Qamaruddin Shaikh, incorporated as F.I.R. First at Police Station Artillery Maidan, Karachi and then at Police RI.R. First at Police Station Artillery Maidan, Karachi and then at Police Station A.C.E., Nausheroferoze is reproduced as under:-- ' To the S.H.O. Police Station Artillery Maidan District South Karachi. Sub: Registration of case against the accused persons for defalcation in Government Revenue. Sir, it is submitted that the undersigned worked in S.A.S.O., Department in past. During tenure of my posting there, I had observed that S.A.S.O. High ranks officers committed misappropriation in the stocks of Fertilizers lying in the godown Moro from which they committed criminal breach of trust and then sold the same stock of Fertilizer in open market of Moro and other places and caused heavy loss to the tune of Rs,1,39,19,060. The head office situated at Karachi also abetted the said crime of S.A.S.O. Godown of Moro and did not order of recovery of loss in respect of the defalcation of the fertilizer stocks. The following accused persons for responsible for wrongful gain through dacoitfull gain in Government Revenue in respect of the Fertilizer lying in the godown of Moro. The names of the accused posted at Moro who committed crime with abetment of each other are appended as under--
(1) Mr. Ghulam Hyder Khoro, S.-I., Moro, (2) Mr. Fateh Muhammad Samo D.A.S.O. Moro, (3) Mr. Qutubuddin Korai, D.A.S.O. Moro, (4) Mr. Abdul Razzak Umrani D.D.A.S./S.A.S.O. Sukkur, (5) Mr. Muhammad Ashraf, Chairman Board S.A.S.O., Moro, (6) Mr. Muhammad Bundhal Chandio, Member of Board S.A.S.O. Moro, (7) Mr. Ghulam Hussain Qureshi, (8) Mr. Muzafar Ali Qureshi, (9) Mr. Allah Bachayo Burrio, (10) Mr. Muhammad Ayub Bhutto, General Secretary, C.B.A. Union S.A.S.O., Sindh Karachi, (11) Mr. Manzoor Ali Narejo who-took over charge of the stock Fertilizers from the through S.A.S.O. Board located at Moro and subsequently committed criminal breach of trust as Public Servant by abusing his official position in active connivance, complicity and common intention/abetment of other accused persons sitting at Karachi S.A.S.O. At Headquarters Office, Karachi. The accused persons who took their shares from the accused persons of Moro in respect of the misappropriation of the Fertilizers of Moro godown by committing criminal breach of trust and then wilfully/malafidely did not order for recovery of the loss sustained by the Government of Sindh from the concerned accused persons who were found responsible for said offence during the domestic inquiries and as well in certain police inquiries and investigation, as certain Police Officers also received bribe from the concerned officers and concealed the facts through ulterior motives by abetting the crime. The names of the officers of S.A.S.O. From Headquarters Office, Karachi are as under--
(1) Mr. Murad Ali Shah, Chairman, S.A.S.O., (2) Mr. Amanullah Pathan, M.D./S.A.S.O., (3) Mr. Ghulam Haider Arain, D.D./Fertilizers, (4) Mr. Muhammad Siddique Hingoro, Director, S.A.S.O., (5) Mr. Bashir Ahmed. Shah, Director, S.A.S.O., (6) Mr. Muhammad Yousif Mirza present M.D./S.A.S.O. It is requested that legal action may kindly be taken against the above named officers of the S.A.S.O. And others in accordance with law, as the abovesaid persons through their illegal methods and means, corrupt practice and corruption caused loss to the Government of Sindh to the tune of Rs,1,39,19,060 which remain unrecovered till date from the accused persons as per standing instruction. (Sd.)
Qamaruddin Shaikh, Ex-S.S.I./O.S.D., Bungalow No,A/1089 Phase-II, Gnlshan-e-Hadeed Steel Town, Karachi, dated 10-6-2000. Accused Officers have committed the offences punishable under the abovesaid sections.
(Sd.) Gul Hassan Shaikh, Anti-Corruption Establishment, Naushero Feroze.
5. Accordingly, Circle Officer, Nausheroferoze namely Gul Hassan Shaikh lodged the F.I.R. No,23 of 2000 on behalf of the State.
6. The interim challan of the case after usual investigation has been submitted in the trial Court on 3-7-2000 against 18 persons including the applicant.
7. I have heard Mr. Imdad Ali Awan, learned counsel for the applicant and Mr. Zawar Hussain Jaffari, Additional Advocate-General for the State and have also perused the material on record and the police file.
8. It has been contended by the learned counsel for the applicant that the period of alleged embezzlement dates back to the year 1995. It was argued that a case F.I.R. No,15 of 1996 at Police Station A.C.E., Nausheroferoze was already registered on 12-8-1996 in respect of the same subject- matter/occurrence of offence as would be evident from the two F.I.Rs, It was further argued that after conclusion of investigation of F.I.R. No,15 of 1996, the challan has been submitted in the trial Court, wherein only one accused namely Ghulam Haider has been sent up for trial upon recommendation of the Anti-Corruption Committee-II, Sukkur while Qutubuddin Korai, District Officer and Fateh Muhammad of S.A.S.O., were dropped and were not recommended for the trial and such case is pending trial before the Special Court as Special Case No,103 of 2000. It was further argued that a third F.I.R. Bearing No,6 of 1996 was also registered at Police Station Moro, which also relates to embezzlement of Fertilizer and Government money. It was, therefore, vehemently urged that there are at least three versions in respect of the alleged occurrence of defalcation/ embezzlement. Learned counsel stressed that the name of the applicant does not find mention in any of these F.I.Rs, and there is no allegation whatsoever against the applicant in the said F.I.Rs,
9. It was further urged by Mr. Imdad Ali Awan, that the applicant was a Senior Police Officer. He had nothing to do in the affairs of the S.A.S.O., which was an independent Organization headed by Managing Director and was under the direct control of Sindh Government. Learned counsel further submitted that the entire record is, lying in the custody of S.A.S.O. The investigation in the case is complete and no further investigation is needed.
10. Mr. Imdad Ali Awan lastly argued that section 409, P.P.C., which was the only offence punishable above 7 years was not at all attracted in the case of the applicant as the applicant, as earlier submitted, was in no way connected with the affairs of S.A.S.O. Thus, the allegation of breach of trust against the applicant is misconceived. Learned counsel at the last leg of his submission contended that the applicant has been falsely and mala fidely involved in the case only on the evidence of one P.W. Namely Muhammad Qasim and two others namely Ghulam Hussain and Allah Bachayo who are employees of S.A.S.O. And accused in the case. It was, therefore, vehemently urged that such evidence was not enough to withhold the concession of bail to the accused/applicant. Learned counsel has placed his reliance upon:--
(1) PLD 1982 Pesh. 128; (2) 1983 PCr.LJ 2010; (3) 1996 SCM R 1132; (4) 2000 SCM R 1072; (5) Unreported Bail order, dated 30-6-2000, in Criminal Bail Application No,651 of 2000 (Karachi) and (6)
Unreported Bail order, dated 26-6-2000, in Criminal Bail Application No,648 of 2000 (Karachi).
11. On the other hand, Mr. Zawar Hussain Jaffari, learned Additional Advocate-General appearing for the State has opposed the prayer of the applicant stating that a huge amount of money is involved and the offence under section 409, P.P.C. Is punishable with life imprisonment. He contended that the applicant as per prosecution case received rupees thirteen lacs as illegal gratification. The learned Additional Advocate-General, however, did not cite any case-law in support of his submission.
12. Analysing the first contention of the applicant's counsel that the report of the alleged offence had already been made as far back as 12-8-1996, through F.I.R. No,15 of 1996, A.C.E. Nausheroferoze, it would appear from the plain reading of the F.I.R. No,15 of 1996 that defalcation/ embezzlement of an amount of Rs,1,39,19,060 was also reported at A.C.E. Police Station through this F.I.R, also lodged at A.C.E., Nausheroferoze.
13. Reverting to the subsequent contentions of the applicant's counsel, I find that the applicant's name does not appear in the F.I.R., there appears only general allegation in the F.I.R., that "certain Police Officers also received bribe from the concerned officers". Further that the applicant is a senior Police Officer and though had remained as Senior Superintendent of Police, Nausheroferoze but was not related with the S.A.S.O. Affairs. Admittedly the entire record and evidence is lying with the organization, which is under the control of Provincial Government.
14. For application of section 409, P.P.C., it would be absolutely necessary to show that entrustment of property was made within the meaning of such provision. Such ingredients of the offence under section 409, P.P.C. Ex facie appear to be missing. Admittedly the allegation against the applicant is that he received some amount of money as illegal gratification for showing some favour to the co- accused. In view of the above, it is yet to be established if the applicant would be liable for the above offence. It has also not been denied that against the applicant prosecution possesses evidence of two accused (turned approvers) and one prosecution witness only. The case-law referred above also supports the contentions raised in favour of the applicant.
15. Keeping in view the above referred law and the peculiar facts of the case, I am of the considered opinion that there appear no reasonable grounds to believe that the applicant is guilty of the offence charged. His case, therefore, would require further inquiry as contemplated under section 497(2), Cr.P.C.
16. Accordingly I grant bail to the applicant in this case subject to his furnishing a solvent sdrety in the sum of Rs,5,00,000 (Rupees five lacs only) and P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court.
17. Bail application was allowed vide a short order, dated 24-7-2000. Above are the reasons for the same.