2016 YLR 40

2016 Y L R 40

[Sindh]

Before Shahnawaz Tariq, J

MUKHTIAR AHMED—Applicant

Versus

The STATE—Respondent

Crl. Bail Appln. No.S-566 of 2013, decided on 17th June, 2015.

(a) Criminal Procedure Code (V of 1898)—

—-S. 497(2)—-Penal Code (XLV of 1860), Ss. 409, 420, 467, 463, 471 & 34—Prevention of Corruption Act (II of 1947), S.5(2)—Criminal breach of trust by public servant, or by banker or by agent, cheating or dishonestly inducing delivery of property, forgery, forgery of valuable security, will, etc., using as genuine a forged cheque, common intention, criminal misconduct—Bail, refusal of—Accused a public servant, was alleged to have embezzled government funds causing heavy loss to government exchequer—Case not falling within prohibitory clause of S.497, Cr.P.C.—Accused could not claim bail as matter of right, and court could decline concession of bail if there existed recognized exceptional circumstances—Alleged (embezzled) amount had been admittedly misappropriated on account of advance payments in violation of prescribed procedure and rules—Offender, in case affecting society, should have been dealt with iron hands and in absence of any exceptional circumstances, concession of bail must not be extended merely on ground that maximum sentence of alleged offence was up to ten years—Deeper appreciation of evidence at bail stage was not permissible under law—Accused could not claim bail on rule of consistency, as co-accused had been granted bail not on merits—Accused failed to make out case for grant of bail on ground of further inquiry—Bail application was dismissed accordingly.

(b) Criminal Procedure Code (V of 1898)—

—-S. 497—-Bail—Case not falling under prohibitory clause of S.497, Cr.P.C.—Exception to general rule—Accused, in a case not falling within prohibitory clause of S. 497, Cr.P.C, cannot claim bail as matter of right, and court can decline concession of bail if there existed recognized exceptional circumstances.

(c) Criminal Procedure Code (V of 1898)—

—-S. 497—-Bail—Offences affecting society—Principles—Offender, in a case affecting society, should be dealt with iron hands and in absence of any exceptional circumstances, concession of bail must not be extended merely on ground that maximum sentence of alleged offence is up to ten years.

(d) Criminal Procedure Code (V of 1898)—

—-S. 497— Bail— Appreciation of evidence—Deeper appreciation of evidence at bail stage is not permissible under law.

Imtiaz Ahmed and another v. The State PLD 1997 SC 545 ref.

Khalid Iqbal Memon for Applicant.

Khadim Hussain Khooharo, D.P.G. for the State.

ORDER

SHAHNAWAZ TARIQ, J.—Through the captioned post arrest bail application, applicant Mukhtiar Ahmed has impugned order dated 26-11-2013, passed by the Court of Special Judge, Anti-Corruption (Provincial) Larkana, whereby his earlier bail application was declined.

  1. The necessary facts spelt out from the prosecution case are that during the period from the year 2005-2008, there was embezzlement in the Government funds worth Rs.10,97,40,310 and such misappropriation had caused heavy losses to the Government exchequer, hence instant FIR.
  2. Learned counsel for the applicant contended that applicant is innocent and has been falsely implicated by the complainant. He further contended that in fact he was posted as clerk in TMA and was maintaining the record and when concerned officials raided the office, he produced the relevant record before them which was impounded by them. He further contended that there is no direct evidence connecting the applicant with the commission of alleged offence. Learned counsel further contended that applicant is behind the bars for the period of more than one year and at present he has retired from his service. Learned counsel further submits that co-accused Abdul Faheem, Muhammad Ali and Ariz Muhammad have been granted interim pre-arrest bail vide order dated 28-4-2015 in Crl. Bail Application No.167/2015 which is still sub judice.
  3. While controverting the contentions raised by learned counsel for the applicant, learned DPG contended that defense has not denied that applicant was maintaining the relevant record and cheque books and even same were recovered from his possession by the complainant. He further contended that as per record only 10% assigned work was completed, while 90% work remained uncompleted as such the advance amount paid regarding the entire work assigned was illegal and utter violation of the prescribed procedure and rules.
  4. Perusal of the material available on record and consideration of arguments advanced by counsel for the parties emanate that applicant was employed in TMA Thul and was maintaining the record of the office including the cheques and same were allegedly issued by him which were en-cashed by the concerned Bank. Indeed, there are nine accused persons nominated in the FIR but only present applicant has been arrested. It is well settled that in cases not falling within the prohibitory clause of section 497, Cr.P.C., the accused could not claim the bail as a matter of right and the court can decline the concession of bail if there exists a recognized exceptional circumstances. In the case of Imtiaz Ahmed and another v. The State PLD 1997 SC 545, the Honourable Supreme Court has observed as follows:–

“6. Adverting to the above first reason, namely, that all the offences except the offence under section 5(2) of Act II of 1947 are bailable and since the latter offence does not fall under prohibitory clause under section 497, Cr.P.C. the two courts below erred in declining bail to the petitioners, it may be observed that by now it is a well settled proposition of law that even in respect of offences not falling under prohibitory clause of section 497, Cr.P.C., the Courts may decline to admit an accused to bail if there exist a recognized exceptional circumstances.”

  1. Admittedly, the amount of Rs.10,97,40,310 has been misappropriated from the account of TMA Thul and on the completion of 10% assigned works while 90% work remained uncompleted and such advance payments were made in utter violation of the prescribed procedure and rules, which has caused heavy losses to the government exchequer. In cases effecting the whole society, the offender should be dealt with iron hands and in absence of any exceptions circumstances, the concession of bail must not be extended mere on the ground that the maximum sentence for the alleged offence is up to ten years. It is well settled that deeper appreciation of evidence at bail stage is not admissible under the law. Furthermore, co-accused Abdul Faheem, Mujahid Ali and Ariz Muhammad have been granted bail by the High Court without touching merits of the case and same is still sub judice a such, applicant could not claim his entitlement of bail on the rule of consistency. Considering the above facts and circumstances, I am clear in my mind that the applicant has failed to make out his case for grant of bail on the ground of further enquiry as envisaged under section 497(2), Cr.P.C. Consequently, instant bail application stands dismissed. Office is directed to tag file of instant bail application along with file of Crl. Bail Application No.167/2015 and fix the same in the court in the first week of July, 2015, within intimation notice to applicants, their counsel and learned D.P.G.

SL/M-74/Sindh Petition dismissed.

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