1. ' By this common order, I intend to dispose of the above two bail applications as the same are outcome of a single F.I.R.
2. ' The applicants Muhammad Saeed Khan son of Muhammad Siddique Khan, and Wasi Haider son of Muhammad Hashim Mufti are facing trial in offence under sections 409, 420, 468, 471, 477-A, 109 and 34, P.P.C. Read with section 5(2) of Act II of 1947, as they were arrested in F.I.R. No, 4 of 2001 registered at Police Station F.I.R. Crime Circle-1, Karachi.
3. ' The bail plea on behalf of the above-named applicants was moved in the Trial Court and the same was dismissed on 27-3-2001 by the learned Special Judge (Central) II, Karachi. Hence the present bail application has been filed on behalf of the above-named applicants/accused.
4. ' Briefly stated, the facts of the case as per F.I.R. Are that the F.I.R. Was lodged on 27-2-2001 at 15-00 hours on written report of Nasir Khan, Deputy Post Master-General, Karachi it was addressed to the DG/Director F.I.A., Karachi alleging therein that as reported by Mr. S.M. Raza, Assistant Post Master Counter, Gulshan-e-lqbal, Head Post Office that 15 Defence Saving Certificates (DSCs) 5 of Rs,100,000 denomination each and 10 of Rs,50,000 denomination each were missing out of the record somewhere from March, 1998 to February, 2001 and on enquiry it was revealed that on 28-7- 1996, New Town General Post Office G.P.O. Dispatched following blank DSCs vide invoice No,16 to Gulshan-e- Iqbal Head Post Office as under:--
(a) DSC No,J-774512 to 774516, (50 certificates) of Rs,50,000 each and
(b) DSC No,K-669916 to 669940 (25 certificates) of Rs,100,000 each. It is further alleged that on 15- 2-2001 Mr. Mushtaq Ahmed, Senior Post Master, Gulshan-e-Iqbal, Head Post Office reported to Senior Post Master New Town, G.P.O. That following blank saving certificates are missing from the record and that enquiry to be carried out to trace out the same:--
(a) DSCc Nos. K-669131-35 (5) Rs,100,000 each,
(b) DSCc Nos. J-774516-25 (10) Rs,50,000 each,
(c) DSCc Nos. J-774512-14 (3) Rs,50,000 each, and
(d) DSCc Nos. J-232737-38 (2) Rs,50,000 each.
5. ' It is further alleged that on further probe DSC No, 774572-14 and 23273-38 were correctly issued to various bona fide purchaser from Gulshan-e-Iqbal, Head Post Office and their value found correctly deposited in Government Account.
6. ' It is further alleged that during enquiry carried out by Mr. Shereen Zaman, Senior Post Master, New Town, G.P.O. Had further revealed that 5 DSCs of Rs,100,000 denomination and DSC of Rs,50,000 denomination at ANB were found fraudulently encashed at New Town G.P.O. On 2-12-2000 and 4- 12-2000 in the following manner: ' The original DSC Purchase Application No,252 was replaced by a forged purchase application through which the 7 DSCs were, shown to be issued in the name of one Mst. Asma Khatoon resident of A-984, Pir Ellahi Bux Colony, Karachi, NIC No,502-90-750542. The said Mst. Asma Khatoon on 2- 12-2000 accompanied by one Mr. Amir Afzal presented herself at New Town for encashment of DSC as the G.P.O. Was short of case on that specific date so she encashed 2 DSCs worth Rs,100,000 each she was paid a total amount of Rs,11,24,640 (Principal amount of Rs,200,000 plus profit Rs,9,24,640).
7. On 4-12-2000 she again visited the New Town G.P.O. With the accomplice and received payment of Rs,32,92,760 (Principal amount of Rs,5,50,000 plus profit Rs,27,42,760). The abovesaid total payment of Rs,42,17,400 was received fraudulently by the above-named lady in connivance with certain officials of Post Office Department.
8. ' It is further alleged that on 16-2-2001 an Enquiry Committee was constituted by the officiating Post Master-General to conduct the true enquiry into the matter and verify the work of New Town and Gulshan-e-Iqbal G.P.O. Alongwith any other Post Office if deemed necessary. Meanwhile Mr. Shereen Zaman, Senior Post Master New Town made scrutiny of record relating to DSCs issue and discharge at New Town G.P.O. He came across another suspicious purchase application pertaining to issuance of DSC in the name of one Munawar Ahmed son of Attaullah. The DSCs were shown to be encashed on 11-12-2000 for a total amount of Rs,25,56,000 (Principal amount Rs,600,000 plus profit Rs,19,56,000). It is further alleged that the above-said DSC No,669263-68 alongwith 4 DSCs Nos.669269-71 and 6692623 shown to be dispatched to P.E.C.H.S. Post Office where the same never received by P.E.C.H.S. Post Office. The entries in the record were made fraudulently by the Postal officials.
9. ' It is further alleged that efforts were made by Shereen Zaman, Senior Post Master to register the F.I.R. With Jamshed Quarters Police Station. Letter dated 16-2-2001, which was received by Jamshed Quarters Police Station but the F.I.R. Was not registered by the police authorities by one pretext or the other. It is also alleged that the following members of public and Postal Department were found prima facie guilty in collaboration/criminal negligence in performance of their legitimate duties in manipulation in Government record and forgery as under:--
(1) Mst. Asma Khatoon, (2) Mr. Amir Afzal, (3) Mr. Munawar Ahmed, (4) Mr. Shahid Raza, (5) Mr. Badar Alam Baig, (6) Mr. Muhammad Saeed Khan, (7) Mr. Wasi Haider, (8) Mr. Sibte Kazim, (9) Mr. Abid Raza and (10) Mr. Abdul Qayyum.
10. ' The F.I.A. Authority after usual investigation arrested the applicant/accused and others and submitted interim charge-sheet in the trial Court on 25-3-2001, wherein Mst. Asma Khatoon, Munawar Ahmed, Shahid Raza, Sibte Kazim, Abdul Qayyum and Amir Afzal were shown to be absconders.
11. ' Mr. S Mujahid Hussain, learned counsel for the applicant, has stated that the encashment of DSCs has taken place on 2-12-2000 to 4-12-2000 whereas the applicant was working at Gulshan-e-Iqbal Post Office from 19-1-1998 to 23-2-1999 and the applicant had handed over the charge on 23-2- 1999 to one Attaur Rehman and said Attaur Rehman has worked at the said post office up to 1999 of 2000 and thereafter Rahim Khan had taken over the charge from 2000 to February, 2001. Rahim Khan also handed over charge to S. M. Raza who has been released on bail by the trial Court. The co-accused Abid Raza is also on bail, granted by the trial Court on 24-3-2001. It is also contended by the learned counsel that Attaur Rehman had taken over the charge from Wasi Haider, the co- applicant on 23-2-1999. Learned counsel further submits that on 10-4-2000 applicant Muhammad Saeed Khan had proceeded on L.P.R. And subsequently he had retired on 9-4-2001. Learned counsel for the applicant has placed on record certificate of retirement. It is further urged by the learned counsel that while holding enquiry by Shirin Zaman, Mr. Mushtaq was Post Master at Gulshan-e-Iqbal whereas Mr. Shirin Zaman was posted at New Town Post Office. It is further contended that all the encashment of DSCs had taken place after the retirement of Wasi Haider. It is further contended by the learned counsel that according to the Post Office Manual, 1968, the registered documents as required under section 547 (sic) it is held that when the holder of a certificate presents it for the discharge at the post office where it is for the time being registered.
12. Payment will be made after the certificate is examined and it is found (sic). The provision of section 547 is reproduced as under:-- "547. Discharge of certificates.---(1) When the holder of a certificate presents it for discharge at the post office where it is for the time being registered, payment will be made after the certificate is examined and it is found--
(a) that it is registered at the office at which it is presented;
(b) that the name of the holder appearing in the application for purchase, transfer or change of name of the holder, as the case may be, corresponds with the name entered on the certificate;
(c) that the certificate bears on the reverse the endorsement "Received payment of Rs, Ps. (Rupees in words and figures) over the signature of the holder,
(d) that it has been presented after the period of non-encashability.
13. ' A literate holder need not attend in person but may depute an agent or messenger furnished with a written authority signed by him for the payment of the value of the certificate to the agent or messenger, where name must be mentioned in the written authority. When payment is made to an agent or messenger, his signature or thumb-impression must be taken in addition to the signature of the holder."
14. ' Learned counsel for the applicant further submits that the sections 533 and 534 are material provisions of law in respect of saving certificates, in which it is provided that the balance should be verified once a week by the Post Master, who should initial and date the register by the column provided for the purpose, in token of having exercised this check and provisions of section 534 also provides that the Post Master has to verify the stock but no return was filed. It will be also advantageous to incorporate the said section for the disposal of these bail applications:--
533. Stock register of certificates.---All supplies of certificates received into or issued from stock must be entered in the prescribed form of stock register (Form S.C.-12) by head and sub-offices in the order of the date of transaction. A separate register should be maintained for each denomination of certificates, separate entries being made for the two classes of certificates for joint holders. The first and last serial of each Nos. Block of certificates, as well as the total number received or issued and the balance in hand after each transaction, must be entered in these registers. The balance should be verified once a week by the postmaster who should initial and date the registers in the column provided for the purpose in token of having exercised this check."
534. Custody of certificates.---(1.) Certificates not actually required for issue to the public must be kept in the custody of the postmaster. A working stock may be held by a counter clerk for issue during business hours and all certificates remaining unissued at the close of each day must be made over by the counter-clerk to the postmaster who should satisfy himself that the balance returned is correct. A working stock so issued should be written off the stock registers.
(2) The postmaster must take precautions to prevent the theft or loss of certificates and all postal officials entrusted with the issue of safe keeping of certificates, will have their personal responsibility in cases of loss or theft of certificates enforced against them in the event of any neglect or disregard to orders."
15. ' It is further stated that Mst. Asma Khatoon and Ameer Afzal have extended the authority for encashment of DSCs to co-accused Ameer Afzal in writing and the same document was signed by Mr. Shirin Zaman. It is further urged that in view of such neglected on the part of Shirin. Zaman the inquiry report has no value in the eye of law. Learned counsel further urged that rule 13 of the Secretariat Instruction issued by the Establishment Division, President's Secretariat. Government of Pakistan that no officer shall deal with a case relating to his own promotion, transfer pay or allowance or that a case dealing with his own official conduct. Therefore, the report of Shirin Zaman in respect of his own conduct cannot be termed as evidence against the applicant/accused. The learned counsel has cited the case-law authorities reported in PLD 1971 SC 277, 1972 PCr.LJ 181, 1980 SCM R 142 and 2000 YLR 994.
16. ' Mr. Shahadat Awan, learned counsel for the applicant Wasi Haider, has urged that applicant/accused was working as Assistant Post Master at New Town from June, 2000 up to 16-2- 2001 and at that time Shirin Zaman was the Senior Post Master at New Town and during his time the encashment was made. Learned counsel has filed a copy of certificate to the effect that NIT capital B-1, which shows that Wasi Haider had handed over charge to Abdul Qayum from 1-4-2000 to 9-4- 2001. Learned counsel has also filed another copy of certificate, which reveals that Wasi Haider had handed over charge to Rizwan Malik on 1-2-1999 and such certificate indicates that the balance of this date of several books including stock book and registers available in the office have been checked and found correct. It is further contended that the offence had taken place during the tenure of Mr. Shirin Zaman, the Senior Post Master at New Town and the encashment was also made during his posting. Learned counsel for applicant has relied upon the cases reported in 2000 PCr.LJ 730 and 1983 PCr.LJ 2010.
17. ' Mr. Ziauddin Nasir, learned State Counsel has vehemently opposed the bail applications of the abovenamed applicants and states that Wasi Haider was posted at Gulshan-e-Iqbal counter as Assistant Post Master while M. Mushtaq was the incharge of the said post office w,e,f, January, 1996 to February, 1999 and during his posting on 20-3-1998 he was holding the charge of such certificate being Serial Nos.669131 to 669135 and he has managed bogus entries in the DSCs Certificates. He has further urged that there is another entry of 10 certificates being J774516 up to J774525. He manipulated the record and sold out such certificates but he had candidly admitted that the said entries were not verified by the Senior Post Master. It is further urged by the learned counsel that Post Office Advise No,16, which was acknowledged by the applicant by putting his signature are available in the record. On question by this Court, he has admitted that on such documents Senior Post Master had not checked the record on weakly basis as prescribed under the law. Learned counsel for the State has also urged that a fake application was prepared and it was kept in the record in place of same serial number which were destroyed. It is admitted by him that this appeal bears no signature of any employee of post office. Learned counsel for the State in respect of grounds urged against the applicant Muhammad Saeed Khan, it is stated that a fake application was not taken into consideration by the applicant Muhammad Saeed Khan if he would have seen this application before signing the schedule the huge amount would have not been released (Rs,25,42,707). He further urged that the abovesaid amount was paid to a fake person, namely, Munawar Ahmed, the absconding accused whereas his part was manipulated and photograph was changed and fake person had got the amount. It is further stated that Mst. Asma Khatoon had got the encashment amount directly without using the authority letter, which was prepared through the connivance of Amer Afzal and the said document was countersigned by Shirin Zaman, Senior Post Master, New Town GPO, Karachi. It is further urged by the learned counsel on behalf of the State that the applicants Muhammad Saeed Khan and Wasi Haider are not entitled for concession of hail, therefore, their bail plea may be rejected.
18. ' I have heard the argument advanced by all the learned counsel and have also perused the material available on the record so also perused all the case-law and sections referred to by the learned counsel.
19. The amount involved is, of course, sufficiently much and this fact by itself would be no ground for refusing bail particularly when there is admitted position that this huge amount was encashed during the tenure of Mr. Shirin Zaman, Senior Post Master and said entries were not verified as required under rule 13 of the Secretariat Instructions and so also the provisions of sections 533, 534 and 547 of Post Office Manual Rules. The co-accused S.M. Raza has been released on bail by the trial Court whereas Badar-e-Alam has also been released on bail by this Court in Criminal Bail Application No,382 of 2001, vide order dated 19-4-2001 in which this Court has observed as follows:- - "Admittedly, an organized crime has been committed, but from the perusal of the record it reveals that the higher authorities have put their signatures on all the documents as countersignatures, therefore, it is yet to be examined that applicant accused in connivance with the other co- accused/certain officials of the Post Office Department committed the offence fraudulently.
20. Admittedly, the main accused Miss Asma Khatoon and other five co-accused are absconding and trial will take long time for its conclusion and only four including applicant accused are in custody.
21. ' In view of the circumstances, it is evident that on 16-2-2001 an Enquiry Committee was constituted by the officiating Post Master General to conduct the true enquiry into the matter and verify .The work of New Town and Gulshan-e-lqbal GPO alongwith any other post office if deemed necessary.
22. Meanwhile, Mr. Shirin Zaman, Senior Post Master New Town made scrutiny of record relating to DSCs issued and discharged at New Town GPO, he came across another suspicious purchase application pertaining to issuance of DSC in the name of one Munawar Ahmed son of Attaullah.
23. The DSCs. Were shown to be encashed on 11-12-2000 for a total amount of Rs,2,05,56,000 (Principal amount Rs,600,000 plus profit Rs,19-56,000). The said DSC No,669263-68 alongwith 4 DSCs.
24. Nos.669269-71 and 6692623 shown to be dispatched to P.E.C.H.S. Post Office, where the same were never received. It is clear that high officials are involved in performing of their duties and remained negligent and entries were made in the record by the postal officials. The 7 DSCs. Were shown to be issued in the name of Mst. Asma Khatoon and total amount of Rs,9,24,640 and thereafter another amount Of Rs A2,17,400 was also received by the said lady with the connivance of certain officials of Post Office Department.
25. ' In view of the above factual and legal position, I am of the view that it is a fit case of further enquiry as envisaged under section 497(2), Cr.P.C., hence the applicant/accused is entitled for concession of bail."
26. ' From the perusal of the record as well as the arguments advanced by the learned counsel it is admitted position that the encashment of the DSCs. Was made within a short time but the Senior Post Master of the relevant office has not checked the weekly entries which are required to be made by the Incharge Post Master under the provisions of sections 434, 435 and 447 and the encashment was made during the days of Shirin Zaman, Senior Post Master, New Town GPO Karachi, whereas the enquiry was also entrusted to him and while he submitted the inquiry report he has not considered Rule 13 of Secretariat Instructions when his own official conduct was involved in the matter. The applicant Wasi Haider was relieved on 23-2-1999 and charge was handed over to Attaur Rehman and thereafter Rahim Khan was holding charge from January, 2000 to February, 2001 and Rahim Khan had handed over charge to S.M. Raza has been released on bail by the trial Court. The co-accused Abid Raza is also on bail by the trial Court on 24-3-2001. It is also matter of record that Attaur Rehman has taken charge from Wasi Haider on 23-2-1999 and F.I.R.
27. Was recorded on 27-2-2001 whereas the applicant Wasi Haider had already proceeded on LPR on 10-4-2000 and thereafter he had retired on 9-4-2001 while all the encashment of DSCs. Has taken place after the proceedings of the applicant on LPR. So far as the case of accused Muhammad Saeed Khan is concerned, he was working as Assistant Post Master, New Town w,e,f, June, 2000 to 16-1-2001 and Mr. Shirin Zaman, Senior Post Master at the commission of the offence and encashment was made during his posting. There is some force in the contention that the above- named applicants and the proposed evidence available on the record is to be adduced at the trial comprising of the documentary evidence and the tampering with the same is not possible and the applicant/accused will have to face his trial proceedings and if the case is made out then the applicant to undergo the sentence provided for the alleged offence with which they have been charged. The absconding accused, namely, Mst. Asma Khatoon, Munawar Ahmed, Shahid Raza, Sibte Kazim, Abdul Qayyum and Ameer Afzal have placed important role in this case for getting the encashment from the said post office.
28. The case of the present applicants/accused is identical with the case of co-accused, who have been released on bail by this Court as well as by the trial Court, therefore, as per rule of consistency the bail concession is also extended to the present applicants/accused, as the bail cannot be withheld as a punishment to them. The investigation is already completed and the applicants/accused are not more required for the investigation and it is a golden rule to grant the bail in such cases as a rule and to refuse is an exception.
29. ' For reasons stated above, I am inclined to allow their bail plea as this is a fit case for further enquiry as envisaged under section 497(2), Cr.P.C., the applicants are directed to be released on bail subject to their furnishing surety in the sum of Rs,1,00,000 each and P.R. Bond in the like amount to the satisfaction of the Trial Court.