1. By an order dated 5-10-2000 applicant Umer Din Lodhi was granted interim pre-arrest bail by my learned brother Muhammad Roshan Essani, J. without .dilating upon the merits or de-merits of the case. The applicant/accused furnished. such surety in the sum of Rs,500,000 and P.R. Bond in the like amount.
2. It appears that the matter was being adjourned thereafter for various reasons and was placed before different Benches. On 19-6-2001 it was placed before me during my sitting at Sukkur. I had directed the office to refer this matter to Honourable 'Chief Justice for passing an appropriate order in view of Zubair's case. On 15-8-2001, the Honourable Chief Justice was pleased to order that this bail application be placed before My learned brother Muhammad Roshan Essani, J. In tl meantime, an application for bail after arrest was filed by co-accused Manzoor Ahmed Jalbani before Circuit Court at Larkana. My learned brother Muhammad Afzal Soomro, J. also directed the office to send the said bail application to Principal Seat at Karachi for appropriate orders by the Honourable Chief Justice. The factual position regarding pendency of the pre-arrest bail of Umer Din Lodhi for confirmation or otherwise and the application filed by co accused Manzoor Ahmed Jalbani in the same crime was brought to the notice of the Honourable Chief Justice and his Lordship was pleased to order the office to send the said application for fixation according to roster as the pre- arrest bail application of Umer Din Lodhi was also sent to Larkana by an order dated 8-4-2002. ' In view of such orders the present application, for grant of pre-arrest bail filed by Umer Din Lodhi and the other one No,55 of 2002 for bail after arrest filed by Manzoor Ahmed Jalbani have been taken up for consideration and decision on merits and are being disposed of through separate orders.
2. The facts in brief giving rise to this application are that on 4-5-2000 a report under sections 409, 420, 467, 468 and 471- A/34,- P.P.C. read with 5(2) Act II of 1947 was lodged on behalf of the State by Abdul Wahab Kalwar Circle Officer ACE Jacobabad at Police Station ACE Jacobabad on the basis of a complaint made by Mr. Maula Bukhsh Khoso, Advocate against applicant Umer Din Lodhi and others.
3. The contents of the F.I.R. are reproduced as below:- "This case has been registered on the complaint of Mr. Mola Bux Khoso, Advocate High Court Sukkur and on the approval of competent Authority. It was alleged that in the year 1995 Mr. Ummer Din Lodhi the than ADC/ADM Jacobabadin collusion with Mr. Muhammad Yousif Malik Ex.-District; Accounts Officer Jacobabad illegally drawn Rs,3,72,00,000 through forged and fake bills in respect of diet of under trial prisoners confined in judicial lock-up in Jacobabad bistrict, as against the budgetary provision of Rs,7,00,000. Also drawn Rs,200,00,000 during first quarter of calendar year 1995. The District Accounts Officer Jacobabad (Mr. Yousif) was placed under suspension An enquiry was initiated by the Finance Department against the Drawing and Disbursing Officer/ADC and ADM Jacobabad, but the same was kept in cold storage and subsequently, Mr. Yousif was re-instated.
4. No enquiry to unearth the embezzlement committed by Mr. Lodhi his associates was conducted.
5. Mr. Lodhi had purchased Agricultural land in District Rahim Yar Khan and also constructed bunglow and purchased two new cars viz. one Toyota new model air conditioned and the other Mehran new car. Two sons of accused Lodhi are taking education as regular students of Shah Abdul Latif University, but at the same time working as Teacher in District, Jacobabad. The five other close relatives of Mr. Lodhi are unlawfully appointed in Taluka Office Jacobabad and are drawing salaries without attending their duties. Mr. Lodhi while working as a Mukhtiarkar Kandkot in the year 1992-93 has also committed forgery and fraud by transfer the Government land situated in Tapa Ghouspur Taluko Kandhkot (Deh Mangi and Arain) in the name of his brother Najamuddin by manipulating the record of right. Now he is selling the land in millions of rupees. More than Rupees 4 crores has been illegally drawn by the accused ADM Mr. Umer Din Lodhi and each time lump sum bills were prepared without showing any details and the bills were submitted to District Account Office without approval of sanction of the competent Authority i,e, Deputy Commissioner. The accused ADM Jacobabad also failed to produce the record of disbursement of the above amount. The District Accounts Officer Jacobabad Mr. Muhammad Yousif Malik without obtaining approval of Finance Department released excess payment as under:- Year Budget PaymentExcess 1994-950.5680 28.876 28.331 Millions 1995-960923 19.650 19.356 millions Moreover that the Finance Secretary has also separately reported against this Officer, after conducting enquiry through Director (Inspection and Accounts) that an amount of Rs,6,104,794 was drawn against the budgetary provision of Rs,323.500 resulting drawal of Rs,5,781,294 unauthorizedly having mala tide intention. The amount was drawn on a plain papers bills (Katcha bills) carrying no signatures of claimants nor accompany the acknowledgment of contractors etc. Those bills are not to be reported as authentic document for creating the claim to draw Government money as it is in contravention of rules 106 G.F.R. volume-I and Rule 81 of Central Treasury Rule. It is, therefore, proved that Mr. Umerddin Lodhi the than ADM Jacobabad in collusion with Mr. Muhammad Yousif Ex-District Accounts Officer Mr. Naseer Ahmed Sohu District Accounts Officer Mr.Mirza Iqrar Baig Ex.Accounts Officer & Mr. Manzoor Ahmed Jalbani the than Auditor had fraudulently drawn more than 4 crores rupees from Government exchequer and misappropriated the same. Hence this F.I.R. (Sd.)
6. CO ACE JACOBABAD Since applicant Umer Din Lodhi was apprehending his arrest at the hands of Anti-Corruption, Police hence he applied for pre-arrest bail before the learned Special Judge Anti-Corruption, Larkana on 15-5-2000. The learned trial Judge instead of passing 'any interim order directed notice to Assistant Director (L) and sent for the police papers. The bail application was adjourned to 17-5-2000. It appears that it was dismissed for non-prosecution on 25-5-2000 whereafter the applicant filed an application for pre-arrest bail before the principal seat of this Court at Karachi and the Honourable Chief Justice by an order. dated 27-9-2000 sent the matter to Sukkur Bench for disposal.
7. Matter came-up for hearing before my learned brother Muhammad Roshan Essani, J. at Sukkur, Interim pre-arrest bail was granted to the applicant without dilating upon the merits of the case, though it was argued in support to the plea for bail that the complaint was made against the applicant in the year 1995. It was inquired at deparmental level and no penal action was recommended against the applicant/accused but departmental action by way of stopping of his three increments. F.I.R. was lodged in the year 2000 after delay of about five years and bail has already been granted to . co-accused Nasser Muhammad Sohu, whereas interim pre-arrest bail has been granted by the learned trial Court to co-accused Manzoor Ahmed Jalbani, Mirza lqrar Baig and Muhammad Yousuf Malik.
8. In support of his plea for confirmation of bail learned counsel for applicant Eimer Din Lodhi has repeated the same arguments to some extent and further argued that the present F.I.R. was lodged at the instance of Mr. Maula Bux Khoso advocate who was having personal grudge against the applicant because PRC was not issued to his sons by the applicant at the relevant time when he was posted as Additional District Magistrate Jacobabad and that Constitutional Petition No,884 of 1995 filed by Mr. M.B. Khoso Advocate in High Court was also dismissed. The allegation against the applicant is in respect of payment of excess amount to the contractors who used to supply diet to under trial prisoners for the year 1992-93-94-95-96 whereas applicant Umer Din Lodhi was posted as Additional District Magistrate Jacobabad on 16-7-1995. It is further contended that departmental inquiry was held and in view of negligence on the part of the applicant instead of misappropriation, embezzlement, forgery or fraud, he has already been punished departmentally.
9. The learned counsel has further argued that it is not a case of embezzlement said mis- appropriation, but in fact it can be said to be a case of irregularity or negligence due to some bonafide omission or a case of excess payment without mala tide intention or dishonesty on the part of the applicant. The learned counsel has further argued that the applicant is a respectable retired Government Servant. The investigation is complete, challan has been submitted and he is no more required for any further investigation. There is no chance of tempering with the evidence as the case is based on documentary evidence and all such documents are in power and possession of the prosecution. He has further argued that nonappearance of the applicant before the learned trial Court was due the fact that police had made it impossible for him to appear before the learned trial Court and the High Court having concurrent jurisdiction under section 498, Cr.P.C. pre-arrest bail can be granted by this Court as well in exercise of such powers. In support of his above contentions the learned counsel has placed reliance on the following cases:-
(1) PLD 1953 FC 170 (2) PLD 1950 Sindh 80 (3) 1976 SCMR 45 (4) 1991 SCMR 322 So far merits of the case for grant of pre-arrest bail are concerned the learned counsel has placed reliance on the following cases:-
(1) 1975 SCMR 137 (2) PLD 1989 SC 347 (3) 1977 SCMR 40 (4) PLD 1982 Pesh. 128 and 1983 PCr.LJ 2010
(5) 1978 SCMR 64 (6) 1991 SCMR 599, and (7) PLD 2000 Kar. 6.
10. Mr. Muhammad Bachal Tunio ,learned Addl.A.-G. has opposed to the grant of bail on the ground that the applicant should have approached the trial Court in the 'first instance and that huge amount is involved in this case hence the applicant does not deserve the concession of bail.
11. Before touching the merits of the case, the first point for consideration will be as to whether the applicant can approach this Court directly without decision of a pre-arrest bail by the learned trial Court on merits. It is well-settled that powers of the High Court under section 498, Cr.P.C. are not merely revisional but are concurrent with those of the Court of the first instance. Reliance can be placed on the case of The Crown v. Khushi Muhammad (PLD 1953 FC 170). A similar view was taken in the case of Muhammad Abbas v. The Crown (PLD 1950 Sindh 80). In the case of Ch. Muhammad Samma and another v. The State (1976 SCMR 45), it has been categorically held that there is no statutory bar to an applicant moving the High Court direct for the grant of pre-arrest bail. While refusing to grant the leave to appeal in the case of The State v. Malik Mukhtar Ahmed Awan (1991 SCMR 322), the Honourable Supreme Court of Pakistan has held as under:- "It is a matter essentially of propriety and not of law that a present accused of an offence should in the first instance move the Court of Sessions for pre-arrest bail before approaching the High Court."
12. The case of the applicant is that he approached the trial Court in the first instance and instead of granting any interim relief notice was ordered to the prosecution and the police papers were called for. However, on the date of hearing the Anti Corruption Police made it impossible for him to appear before the learned trial Court and as such his application was dismissed for non-prosecution. It was under these circumstances that he has approached this Court for bail. In view of the case law as cited above as well as the facts and circumstances of this case, I am also of the view that it shall not be appropriate to insist that the applicant should again approach the trial Court, hence I propose to examine the merits of case for bail. Keeping in view the arguments advanced by the learned counsel for the applicant and the learned A.A.-G, it shall have to be seen whether a case for grant of pre-arrest bail is made out on merits. It is an admitted position that offences pertain to the years 1992 to 1996 and admittedly applicant was posted as ADM Jacobabad in the year 1995 (on 16-7-1995) hence the whole of the period shown in the F.I.R. cannot be put to his account. The two inquiries conducted by the Additional Commissioner-I Larkana. Division in the first instance and the other one conducted by Additional Commissioner-II Larkana Division, the act on the part of the applicant relating his period of posting was found to be an irregularity in drawing the Government funds in excess to the sanctioned amount. Both the Inquiry Officers have not held the applicant responsible for embezzlement of funds. The case has been investigated and challan has been submitted. The applicant who is a retired Government servant is no more required for any further investigation.
13. Merely the fact that the amount involved is huge cannot be made a ground for refusing the bail under the circumstances of the case. Co-accused Naseer Ahmed Sohu has already been granted bail by the learned trial Court and co-accused Manzoor Ahmed Jalbani has been granted bail after arrest today by this Court. The applicant has pleaded mala fide on the part of the Anti- Corruption. Police at the behest of, the complainant who had filed an application against the applicant due to his personal ill will. The applicant was granted interim pre- arrest bail hi 5-10- 2000 i,e, more than one and a half year back and there is no complaint that he has misused the concession of the . interim bail. In the case of Rana Phool Muhammad Khan and others v. The State (1975 SCMR 137) this aspect that the interim bail was granted about 7 months back and there was no complaint during the period accused remained on. interim bail, was also taken as one of the ground for confirmation of the bail apart from the merits of the case. A similar view was taken by Waheeduddin Ahmed, J. (as he then was) in the case of Bashiruddin and another v. The State (1977 SCMR 40), where interim bail granted to applicants who were facing charge for embezzlement of the money belonging to the Insurance Company in December, 1971 was confirmed on 10th May, 1972 keeping in view as one of the grounds that nothing was complained against the appellant during that period. In the case of Meeran Bux v. The State and another (PLD 1989 SC 347) the fact that the appellant remained on bail for more than one year before the said pre-arrest bail granted by the Sessions Judge was cancelled by the High Court without abusing the concession of bail in any manner was also taken into consideration as a ground amongst hers.
14. The ground raised by the learned AA.-G. that the amount involved is huge hence the applicant does not deserve the co cessions of the bail. I have 'dealt with this porn in connected bail Application No,55 of 20C2 (Manzoor Ahmed Jalbani v. The State) ' which taking into consideration the rule laid down in the cases of Mir Akhter Khan Khatak State'(PLD 1982 Pesh. 128). Where booked for offences under section 409, P.P.C. were granted bail while holding as under:- "No doubt the amount- involved is sufficiently large but this fact by itself would be no ground for refusing bail particularly when the investigation is complete and commencement of trial is likely to take considerable time as it happens in such like cases. It would serve no useful purpose if the petitioner is kept behind the bar for indefinite .period being a public servant because as a rule bail is not to be with held as a punishment."
15. In the case of Abdul Hav-uz-Zafar v. The State (KR 1983' Criminal 189) under section 409, P.P.C. bail was granted though the amount involved was huge. The rule laid down reads as under:- "I have considered the arguments of the learned counsel for both the parties and find that the amount involved is of course sufficiently large and this fact by itself would be no ground for 'refusing bail particularly when the investigation is complete, except that the report of the handwriting expert is awaited. There is some force in the contention of the learned counsel that the proposed evidence to be adduced at the trial comprised documentary evidence and tampering with the same is not possible. As far as the question of prohibition contained in subsection (1) of section 497 is concerned, a Court is not supposed keep in view only the maximum sentence provided under relevant law rather it is to be seen that punishment is likely to be awarded ultimately to an accused in particular circumstances of the case. To grant the bail is rule and to refuse is an exception. The petitioner is admittedly a public servant and there is no likelihood of hisabscondence." The fact that the amount embzelled was huge alone cannot be made a ground to refuse the bail came-up for consideration in the case of Ejaz -Akhtar -v. The State (PLJ 1978 SC 431) where in it has been held by their lordship in Supreme Court, as under.
16. "Mr. Zafar Mahmood presses for bail on the ground that the charges against the petitioner are not punishable with transportation for life. That is correct. On the other hand Mr. M. Iqbal opposes bail on the ground that the charge against the petitioner is of a grave nature because the amount embezzled was hugs No doubt the amount involved is large but by itself this would be no ground for refusing bail. Mr. K.M. Iqbal then submitted that the petitioner might tamper with the evidence if enlarged on bail. If the petitioner abuses the bail granted to him the State, can prosecute its remedies in the Sessions Court but at this stage in the absence of evidence in support of this allegation, we cannot refuse bail and there is no such evidence." As a result of discussion made above and keeping in view the facts and circumstances of the case as well as the case -law cited at the bar I am of the view, that it is a fit case for confirmation of bail as no useful purpose will be served if the appellant who has also pleaded malafides on the part of prosecution is kept in custody and thereafter released on bail particularly ' when the applicant is not required for any further investigation, challan has been submitted and the evidence on which the prosecution wants to rely is mainly in the form of documents and record which are in possession of the prosecution hence there appears to be no chance for tempering of such evidence. Moreover, co-accused Naseer Ahmed Sohu is already on bail granted by the learned trial Court and other co-accused Manzoor Ahmed Jalbani has also been granted bail after arrest by this Court. There is no complaint that during this period of about more than one and a half year the applicant has misused the concession of interim pre-arrest bail granted to him on 5- 10-2000. Resultantly. interim pre-arrest bail already granted to the applicant is hereby confirmed oh the same terms.
17. By a short order dated 24-5-2002 this application was granted and above are the reasons for the same.