' Criminal Miscellaneous Petition No,791 of 2001 (Zahir Shah v. State) and Criminal Miscellaneous Petition No,845-A of 2001 (Abdul Hafeez Sawal v. State) for grant of bail arising from the same F.I.R.
Are being disposed of by this common order.
2. The petitioners stand charged under sections' 409/420/468/471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act vide F.I.R. No,6, dated 13-6-2001 registered against them at Police Station A.C.E., Timargarh. Both the petitioners namely Zahir Shah and Abdul Hafeez Sawal were refused bail by the Special Judge Anti-Corruption N.-W.F.P., Peshawar on 7-7-2001 and 19-7-2001 respectively. Hence the instant two separate applications for bail.
3. Facts of the case in brief are that a Complaint No,4307; dated 13-6-2001 was addressed to the Chief Secretary, Government of N.-W.F.P., Peshawar against the petitioners and other employees of the C&W Department including the contractors to the effect that they had misappropriated the embezzled huge funds allocated by the World Bank for the repairs and basic facilities of 21 school buildings in District Dir; that the repair and construction work was completed within a period of five years and handed over to the Education Department. In the said work officials of the C&W Department with the connivance of contractors have burdened the Government with heavy financial losses and thus, committed embezzlement of huge amount from the Primary Education Project (World Bank) Fund.
4. After receiving the orders/instructions from the Chief Secretary, N.-W.F.P. The aforesaid F.I.R. Was registered wherein Zahir Shah petitioner, Jan Alam S.D.Os. And Abdul Hal, Accountant of the C&W Department nominated in the complaint were charged. Jan Alam succeeded in getting pre-arrest bail while the others were formally arrested. The matter was inquired through Muhammad Atiq Farooq, Assistant Technical Officer, Anti-Corruption Establishment who conducted a thorough inquiry on spot in presence of officials of C&W Department and Anti-Corruption Establishment, Timargarh and perused the relevant record with reference to the standing rules, instructions and approved Schedule of 1999. In his report he has opined that in four Government Primary Schools namely Government Primary School Rabat, Government Primary School' Odigram, Government Primary School Manzaray Tangay and Government Primary School Sher Khanay losses to the tune of Rs,2,82,880, Rs,8,35,080, Rs,1,79,293 and Rs,5,92,896 respectively were caused to the Government Exchequer total whereof comes to Rs,18,90,149. The said loss was caused by noticing that the proposed basic facilities were not required in the concerned schools and the sanctioned amount was utilized in other schools unjustifiably, the quantity of work was increased to give undue benefit to contractors and very high rates for additional work as against approved schedule were. Given to the contractors.
5. The Senior Audit Officer, Anti-Corruption Establishment in his report, dated 19-6-2001 also affirmed the report of Assistant Technical Officer Anti-Corruption Establishment. The record pertaining to the construction of basic facilities and repair work in remaining Government Primary Schools mentioned in the complaint were also examined and found no fault on the part of concerned authorities and causing no loss to the Government Exchequer.
6. The learned counsel for the petitioner Abdul Hafeez Sawal, XEN C&W Department, Dir mainly contended that the petitioner was posted in District Dir Lower on 6-1-2001 while the scheme of Primary Education Project was already closed on 31-12-2000 and he cannot be blamed for the losses caused to the Government Exchequer in the said programme. The record reveals that the vouchers 75/P-2 and 34/P-2 were issued and signed by the said petitioner as Head of the Department and even the securities of contractors were also released by him. The matter is still under investigation and further evidence regarding collusion of Government officials and contractors is yet to be unearthed. It is also contended that under the Public. Works Code he could not withhold the payment when the bill was prepared in the office duly verified by the S.D.O. And by the Accountant. This contention is also not convincing on the ground that being Head of the Department he was supposed to know the prevailing schedule for the year 1999 for construction and purchase of various items for the construction. The Senior Audit Officer of the Anti-Corruption Establishment have stated in their reports that over-payment was made to the contractors against the approved schedule for 1999. In these circumstances the said petitioner cannot be exonerated from the charge merely on the ground that he was posted there on 6-1-2001 after the closure of the Primary Education Programme, particularly when the matter is still under investigation.
7. As regards the case against Zahir Shah petitioner it is contended that responsibility of various officials of the C&W Department from 1997 till the last payment to the contractors is yet to be determined and the petitioner cannot be exclusively blamed for the financial loss caused to the Government Exchequer. For disposal of bail petition in a case where punishment provided under the law is death, imprisonment for life or imprisonment for ten years, the Court has to see the prima facie nature of the case against the accused-petitioner after making a tentative assessment of the prosecution evidence. If prima facie an accused is found reasonably connected with the commission of offence punishable for 10 years or more the Courts will have no jurisdiction to enlarge the accused-petitioner on bail in view of the restriction contained in section 497(1), Cr.P.C.
Section 409, P.P.C. For which the petitioners are charged is punishable for imprisonment for life or for a term upto ten years and thus, falling within restriction contained under section 497(1), Cr.P.C. It is undisputed fact that the petitioner remained posted as S.D.O. Of the C&W Department from 6-8- 1998 and during his posting as such the aforesaid losses to the Government Exchequer had occurred. It is also an undisputed fact that petitioner was to examine the construction work and to verify the voucher for payment of bills to the contractors. The record also reveals that the last vouchers whereby the last payments were made to the contractors were duly signed by the petitioner. The petitioner may not be exclusively liable for the entire Tosses caused to the Government Exchequer but each and every official involved in the connivance of causing financial loss to the Government exchequer would individually and collectively be liable for misappropriation and to suffer conviction and various imprisonments with fines under the section of law for which the petitioners are charged. The learned counsel has relied on Raza Muhammad Sial v. State 1988 SCMR 1223 but the same is distinguishable on facts as the accused in that case was found hardly implicated in view of the prosecution witnesses, but in the present case petitioners are prima facie connected with the commission of offence in light of the evidence so far collected particularly the reports of Senior Auditor and Assistant Technical Officer of the A.C.E.
Referred above. Learned counsel also relied upon Shamraiz Khan v. State 2000 SCMR 157 but the same has no bearing on the facts and circumstances of the present case as in the cited case the embezzled amount of Rs,15,00,00,000 were either deposited or were going to be deposited by the accused while in the instant case this is not case of the petitioners that the embezzled amount has been deposited by the accused or they are ready to deposit the embezzled amount. As regards the sufficiently huge amount in embezzlement the learned counsel has relied upon Mir Akhtar Khan Khattak v. State PLD 1982 Pesh. 128 which cannot be disputed as it is quality of the prosecution evidence to be tentatively assessed for disposal of the bail petition and not the amount involved.
8. In rebuttal the learned Assistant Advocate-General has relied upon Tubbasam Ahmed Qureshi v.
State 2000 PCr.LJ p.105 - respecting the offences involved herein, wherein it was observed that the case against accused was neither an outcome of enmity nor his involvement in the case was based on mala fide and in light of the tentative assessment of the prosecution case the accused whose case was not falling even within the restrictive part of section 497(1), Cr.P.C. Being not charged under section 409, P.P.C. Was refused bail. In the instant case the petitioners were exonerated from the charge of misappropriation and embezzlement of the complained 17 schools by the Technical Officer and Senior Accounts Officers A.C.E. Thus, no mala fide could be alleged against those officers. In another judgment cited by the learned Assistant Advocate-General Imtiaz Ahmed and another v. State PLD 1997 SC 545 wherein after interpreting the various provisions of law the august Supreme Court refused to grant the concession of bail to the accused charged under the Prevention of Corruption Act with relevant sections of the P.P.C. A passage from the said judgment is wroth perusal which reads as follows:-- "7. I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases, the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C. In the absence of an exceptional circumstance may be followed, but in the later category the Courts should be strict in exercise of discre tion of bail. In my view, the above category of the offenders belongs to a distinct class and they qualify to be treated , falling within an exceptional circumstance of the nature warranting refusal of bail even where maximum sentence is less than 10 years' R.I. For the offence involved provided the Court is satisfied that prima facie, there is material on record to connect the accused concerned with the commission of the offence involved."
9. The matter is still under investigation and in view of the facts D and circumstances noted above I found the petitioners not entitled for the concession of bail at this stage. The Investigating Officer is directed to conclude the investigation within two months failing which the petitioners would be at liberty to approach the trial Court afresh for the concession of bail. The observations made above are tentative in nature and will not cause a hurdle in the discretion of trial Court in granting bail if investigation could not be completed in the period noted above or some evidence exonerating the petitioners is brought on record during investigation. With these observations both the petitions for hail are hereby dismissed.