IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

                      Crl.  Bail Appln. No. S- 470 of 2014.

 

Date

               Order with signature of Judge

 

 

 

Applicant.                              Abdul Sattar, through

                                                Mr.Sadaruddin Burioro Advocate.

 

 

 

Respondent:                          The State through

                                                Mr.Aftab Ahmed Shar Addl.P.G.

 

 

Date of Hearing                    10th June, 2019.

 

 

 

                                 O R D E R.

 

 

ADNAN-UL- KARIM MEMON,J-            Through the instant Bail Application, Applicant Abdul Sattar Ujjan, is seeking pre-arrest Bail in Crime No.04/2014, registered with Police Station, ACE Naushahro-Feroze, for offences punishable under Section 409, PPC Read with Section 5(ii) Act-II of 1947.

2.       Prosecution has setup the case against the Applicant  on the premise that on  account of  an enquiry,  which was converted into complaint No.08/2011 of ACE Naushahro Feroze, with the  allegations  that during crop season-2008-2009, the Applicant Abdul Sattar Ujjan, (Food Inspector) was posted as In-charge Food Godown PRC Darbello, District Naushahro Feroze  and during the aforesaid season, he received/acknowledged in all 120407 Bags of Government wheat, equal to 12041910 KGs out of said bags he dispatched 117839 bags only, weighing 1147115 KGs, but he failed to deposit the remaining 2568 bags weighing 570755 KGs and did not deposit the same with the Government. Per prosecution story, the value of the aforesaid bags came to Rs.15056517/-. Thus the Applicant has committed the Criminal Breach of Trust and has caused heavy loss to Government Exchequer. The aforesaid FIR was lodged on 25.6.2014 by the ACE N.F-department. Investigating Officer recorded statements of prosecution witnesses. Finally, Investigating Officer submitted Charge Sheet on 19.9.2014 before the Special Court for Anticorruption, Sukkur. The Applicant moved pre- arrest Bail Application No.79 of 2014, in Special Case No. 34 of 2014, before the learned Trial Court, which was dismissed vide Order dated 11.7.2014. The Applicant being aggrieved by and dissatisfied with the rejection of his Bail Application, approached this court on 13.8.2014, and ad-interim Bail was granted to him vide order dated 13.8.2014 and since then he is on interim Bail.

3.        Mr. Sadaruddin Buriro, learned Counsel for the Applicant has mainly argued that the Applicant is innocent and has been falsely implicated in the present crime by Food Department in order to save the actual culprits, involved in the alleged scam, in connivance with ACE N.F Police. Per learned Counsel no offence has been committed by the Applicant as narrated by the ACE police. Per learned Counsel Applicant has no previous criminal record and entire case requires further enquiry into the guilt of Applicant; that nothing was missing in the tenure of service of the Applicant as depicted by the prosecution; that alleged shortage of Wheat bags from Food Godown PRC Darbello, District Naushahro Feroze was not responsibility of the Applicant, as he was not allowed to inspect the purported shortage of Bags; that the Applicant was made scape-goat, in place of actual culprits; that the applicant was not heard on the alleged allegations leveled against him; that prosecution has committed gross negligence in the matter and reported the alleged misappropriation in the year 2014,wheras the alleged offence took place in the year 2008-09 and such delay has not been explained; that the aforesaid act of the Government functionaries is based on malafide intention and ulterior motives, which has caused great prejudice to the case of the Applicant; that the purported inquiry of alleged incident was unilateral without affording an opportunity of hearing to the Applicant; that the Applicant has not misused the concession of Pre-arrest Bail granted to him and he has been regularly attending the Court proceedings before the learned trial Court. He lastly prayed for confirmation of pre-arrest bail to the Applicant. In support of his contention, he relied upon the statement dated 10.6.2019 and argued that  neither the Applicant is responsible for alleged shortage of Wheat bags nor has he caused any loss to Government exchequer.

4.         Mr. Aftab Ahmed Shar Addl.P.G opposed the grant of Bail to the Applicant and argued that the Applicant is involved in the misappropriation of wheat bags and caused loss to the Government exchequer, thus not liable to concession of extraordinary relief; that the prosecution has collected sufficient incriminating evidence against the Applicant and if the Bail is granted, the Applicant will continue to commit similar criminal activities, causing harm to the public at large. He next contended that Prosecution case is fully supported by the statements of the witnesses therefore; Applicant is not entitled to the concession of pre-arrest Bail; that the prosecution witnesses have no enmity with the Applicant which could suggest false implication of the Applicant; that delay in lodging FIR was due to pendency of C.P No.358 and 811 of 2014 filed by the Applicant, which was finally decided by this Court on 16.4.2014; however, he conceded that the  trial is at the verge of conclusion and the Applicant is regularly attending the Court proceedings.

5.          During the course of arguments, it was inquired from learned APG that as per the office order dated 25.4.2009 and 2.12.2009 (available at page No 29 and 47 of police file), which prima-facie show that Ghulam Farooq Kalri and Nazir Ahmed Memon            (Food Inspectors) had remained in charge of the aforesaid Food Godown, during the crop session-2008-09 and Nazir Ahmed Memon was also directed to clear wheat stocks stored at PRC Darbello, and whether they had been arrayed as accused in the charge sheet. He replied in negative and stated that Nazir Ahmed Memon had passed away on14.6.2014, before lodging of FIR. Be that as it may, I am only concerned whether the Applicant is entitled for grant of Pre-arrest Bail or otherwise.

6.        I have heard learned Counsel for the Applicant, learned Prosecutor, and perused the material available on record.

7.       While deciding a Bail Application, only allegations made in the FIR, statements recorded under Section 161 Cr.P.C. nature and gravity of charge, other incriminating material against the accused, legal pleas raised by the accused and relevant law have to be considered.

8.       Tentative assessment of record reflects that Applicant is charged with the allegations of misappropriation of wheat bags of crop session 2008-2009 and the Government lodged complaint against the Applicant in the year 2014, without explaining such long delay in informing the ACE-police regarding alleged misappropriation and loss to Government exchequer if any, which prima-facie shows malafide intention on the part of the Government functionaries and complainant, thus it is yet to be seen as to whether any loss has been caused or otherwise and the trial Court is seized of the matter and recorded evidence of the parties and few witnesses are yet to be examined to conclude the trial, therefore recalling of the pre arrest Bail granted to him at this stage would not be justified, when he is regularly attending the learned trial Court, as per prosecution.

9.        I am of the view that grant of pre-arrest Bail is an extra ordinary relief which is extended in exceptional circumstances when glaring malafide is shown on the part of prosecution to cause unjustified harassment and humiliation of person in case of his arrest.

10.          In my considered view, it is not proper to depend on ipsi dixit of ACE-Police N.F regarding guilt of Applicant, which is to be determined on the basis of evidence, which is yet to be proved but prima facie at this stage sufficient incriminating material is lacking in this case to connect the Applicant with the commission of alleged offences, and prosecution has yet to establish its case regarding application of section 409, P.P.C at trial. It is well settled by now that where evidence with regard to the allegation of criminal breach of trust is lacking the concession of bail can be extended in favour of Applicant. Besides, Applicant has pointed out malafide on the part of Government functionaries and ACE-Police NF; therefore, he is entitled to concession of pre-arrest Bail and the trial is also at the verge of conclusion as pointed out by the learned prosecutor.

11.        In view of the above facts and circumstances of the case, I am of the tentative opinion that Applicant/Accused has made out a case for grant of Pre-arrest Bail; hence, Interim Pre-arrest Bail granted to the Applicant vide Order dated 13.8.2014  is hereby confirmed  in the same terms and condition.

12.         The findings mentioned above are tentative in nature which shall not prejudice the case of either party at the trial stage. However, the learned Trial Court is directed to record evidence of the remaining witnesses within a period of one  month and conclude the trial in accordance with law and in the meanwhile, if the Applicant fails to appear before the learned trial Court, his Bail may be cancelled by the learned trial Court without obtaining any order from this court.

13.         The instant Bail Application stands disposed of in the above terms.

                                                                                                                                  JUDGE

 

 

 

 

 

 

 

 

 

 

Akber.