IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-760 of 2020

Cr. Bail Application No.S-761 of 2020

Applicants: i. Zamir Ali and others and

ii. Ali Muhammad, through

Mr. Sohail Ahmed Khoso, Advocate

Cr. Bail Application No.S-783 of 2020

Applicant: Asadullah, through

M/s Qurban Ali Malano and Aamir

Mustafa Kamario Advocates

Cr. Bail Application No.S-23 of 2021

Applicant: Fayyaz Hussain, through

Mr. Abdul Baqi Jan Kakar, Advocate

Cr. Bail Application No.S-178 of 2021

Applicant: Muhammad Bachal, through

Mr. Farozuddin N.Shaikh, Advocate

State: Through Mr. Shafi Muhammad Mahar

Deputy Prosecutor General.

Date of hearing: 18-02-2022

Date of Decision: 18-02-2022

O R D E R

ZULFIQAR ALI SANGI, J.- By this common order, I intend to dispose of captioned five bail applications arising out of same crime, filed by applicants Zamir Ali, Abdul Jabbar, Anwar Ali, Abdul Ghaffar, Muhammad Ali, Inayat Ali, Mukhtiar Hussain and Imran Ali (Cr.B.A.No.S-760/2020), applicant Ali Muhammad (Cr.B.A.No.S-761/2020), applicant Asadullah (Cr.B.A.No.S-783/2020), applicant Fayyaz Hussain (Cr.B.A.No.S-23/2021) who are seeking their pre-arrest bail while applicant Muhammad Bachal (Cr.B.A.No.S-178/2021) is seeking his post-arrest bail, in Crime No.02/2020, registered at Police Station ACE Khairpur, for the offences under sections 161, 409, 467, 471, 468, 471, 477-A, 34 PPC r/w Section 5(2) Act-II of 1947. Their earlier bail pleas were declined by the learned Special Judge Anti-Corruption (P) Sukkur Division Sukkur vide orders dated 14.12.2020, 07.01.2021 and 06.03.2021 respectively.

2. It is alleged that Muhammad Arif Leghari and Asadullah both Deputy Directors Mines and Mineral Department did not conduct the auction of mines for the period from 01.07.2017 to 01.08.2017, 01.07.2018 to 08.04.2019 and 1.07.2019 to update, the contract of auction for collection of royalty for the period from 03.08.2007 to 30.06.2018 and 09.04.2019 to 30.06.2019 was awarded to contractor Fayyaz Hussain and it was further extended for two months but said Fayyz Hussain absconded away with government amount of Rs.45,67,000/- with the help and collusion of Muhammad Arif, Asadullah both Deputy Directors and Imran Memon Assistant Director. It is also alleged that royalty for the period from March to June 2020 was not collected on the pretext of lockdown thereby caused loss of Rs.50,00,000/- to the government. It is also alleged that contractor Ali Muhammad Shaikh, Asif Ali Gopang junior Clerk, Hanif Taqi Junior Clerk, Javed Ali Memon Junior clerk, Sikandar Ali driver, Shahzado Naib Qasid and Saifullah Naib Qasid, collected the royalty in excess of schedule rates in connivance with private persons namely Zameer Hussain, Zahid Hussain, Ali Muhammad, Muhammad Ali, Anwar Sohu, Mukhtiar, Babar Ali, Ihsan, Abdul Ghaffar, Anwar Wassan, Abdul Jabbar, Ahmed Ali @ Foji, Inayatullah, Imran from check posts Ubban Shah, Mehran, Chundko, Sathio Wah and Adam Sultan. It is further alleged that accused Sajid Tax clerk of Town Committee Kotdiji collected tax of road maintenance, parking fees, recreation fee etc in connivance with account clerk Muhammad Bachal Solangi illegally and only deposited Rs.33000/- in the Government treasury and amount of Rs.29,46,335/- was usurped during the year 2019-20.

3. Learned counsel for the private accused/applicants in Cr.B.A.Nos.S-760 and 761 of 2020, has contended that initially the contract was awarded to Fayyaz Hussain after due publication and other private accused persons nominated in the FIR were his servants who were collecting the taxes under the said contract and they had paid the entire outstanding against them to the Government and there is no complainant of the department in respect of any misappropriation or default. He placed on record certain bank receipts to show that the payment was made to the department. Lastly he prayed that the interim pre-arrest bail granted to the applicants may be confirmed.

4. Learned counsel for applicant Asadullah in Cr.B.A.No.S-783/2020 submits that he was not posted at the time for which the investigation was conducted, however he was the person who pointed out to the department that there are some illegalities and irregularities in the contract so also payments and its collection. He next contended that the applicant being responsible officer has wrote such letters to the concerned authorities and had committed no offence. Lastly he prayed for confirmation of interim pre-arrest bail already granted to applicant.

5. Learned counsel for accused Fayyaz Hussain in Cr.B.A.No.S-23/2021 submits that he was only clerk/ accountant and he has no authority to award the contract nor have authority to collect any amount from the contractor and no material is collected by the Investigating Officer against him. He also prayed for confirmation of interim pre-arrest bail already granted to applicant.

6. Learned counsel for accused Muhammad Bachal in Cr.B.A.A.No.S-178/2021 submits that the story setup in the FIR is totally false, fabricated, concocted and managed one. He next contended that the applicant is retired aged person and he has nothing to do with the alleged offence. Lastly he contended that the applicant is no more required to police for further investigation hence his confinement will not serve any purpose, therefore he may be enlarged on bail.

7. Learned DPG assisted by I.O Jinsar Ali Soomro has opposed the bail pleas of applicants and has contended that in view of the case law reported as PLD 2021 SC 892 and PLD 2021 SC 894 the bail application of accused Asadullah is not maintainable as his earlier bail application was dismissed for non-prosecution on 17.12.2020. He next contended that the present FIR was lodged under the orders of this court and after conducting investigation it was found that contractor had not deposited the contractual amount and same has been misappropriate. He also contended that accused persons also collected the taxes beyond their rates which were allowed through their contract, therefore they are fully involved in the case and have caused heavy loss to the Government Exchequer. He prayed for recalling of interim pre-arrest bail already granted to applicants as well as dismissal of post-arrest bail.

8. I have considered the submissions of learned counsel for the parties and have gone through the material available on the record with their able assistance.

9. So far the contention of non-maintainability of bail application of accused Asadullah is concerned, I have perused the material available on record wherein accused Asadullah has brought sufficient material including medical certificate and test reports of lab which reflects that he was busy in treatment of his wife therefore he could no appear before the court and his bail application was dismissed for non-prosecution. The reasons shown by accused Asadullah for his non-appearance, appears to be genuine, therefore in view of the aforesaid judgments relied by learned DPG his second bail application is maintainable.

10. Perusal of record reflects that the contract was awarded on 01.08.2017 till June 2018. Learned counsel through statement has placed on record bank vouchers wherein the contractor has deposited an amount of Rs.14,00,000/- on 25.08.2020, Rs.700,000/- on 31.08.2020, Rs.21,00,000/- on 28.09.2020, Rs.700,000/- on 28.09.2020, Rs.700,000/- on 21.10.2020, Rs.700,000/ on 13.10.2020 and Rs.10,00,000/- on 20.11.2020, which reflects that same amount in respect of contract has been deposited by the contractor. After these receipt the court has enquired from the I.O, who failed to give any satisfactory reply and only submitted that accused have not joined the investigation, however he admitted that he had not collected any report from the bank in respect of amount deposited by the contractor. From the conduct of the Investigating Officer it reflects that he has not conducted the investigation fairly nor he has collected the material which favours the caccused but he simple recorded the statements of persons who have deposed against the accused persons. Record further reflects that at the time of awarding of contract applicant Asadullah Shaikh was not posted and he was posted on 28.09.2018. Applicant Asadullah has placed on record certain letters which reflects that he has shifted the responsibility from his shoulders and the contract so awarded prior to his posting was even not canceled.

11. Since this court found some doubts in the investigation conducted by the I.O who has not even collected the material which was available with the department so also with the banks and same can favor the accused persons. The Act of I.O further reflects that either he has concealed this material or negligently he has not collected the same. In view of these circumstances, the matter requires further enquiry and involvement of applicants will be decided by the trial court after recording evidence. Deeper appreciation of evidence is not permissible at the bail stage and the same is to be decided tentatively.

12. From the tentative assessment of material available on record, it appears that the applicants have made out their good case for grant of pre-arrest /post-arrest bail. Resultantly, all these bail applications are allowed and the interim pre-arrest bail granted to applicants Zamir Ali, Abdul Jabbar, Anwar Ali, Abdul Ghaffar, Muhammad Ali, Inayat Ali, Mukhtiar Hussain and Imran Ali in Cr.B.A.No.S-760/2020 vide orders dated 17.12.2020, applicant Ali Muhammad in Cr.B.A.No.S-761/2020 vide order dated 17.12.2020, applicant Asadullah in Cr. B.A.No.S-783/2020 vide order dated 28.12.2020 and Fayyaz Hussain in Cr.B.A.No.S-23/2021 vide order dated 11.01.2021, are hereby confirmed on the same terms and conditions, whereas in Cr.B.A.No.S-178/2021 applicant Muhammad Bachal is admitted to post-arrest bail subject to furnishing solvent surety in the sum of Rs.50,000/- (rupees fifty thousands) and PR bond in the like amount to the satisfaction of the trial court.

13. The observations made hereinabove are tentative in nature and will not in any manner, influence the learned Trial Court at the time of final decision of the subject case.

14. These are the reasons of my short order dated 18.02.2022 whereby the captioned bail applications were allowed.

15. Office is directed to place a signed copy of this order in all the captioned connected bail applications.

JUDGE

Suleman Khan/PA