2025 M L D 907
[Balochistan]
Before Shaukat Ali Rakhshani, J
MUHAMMAD YOUSAF and 2 others ---Applicants
Versus
The STATE--- Respondent
Criminal Bail Application No. 473 of 2024, decided on 14th October, 2024.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497(2) ---Penal Code (XLV of 1860), Ss. 408, 409, 420, 467, 468 & 471--- Prevention
of Corruption Act (II of 1947), S. 5 ---Criminal breach of trust by a clerk or servant,
criminal breach of trust by public servant, cheating and dishonestly inducing delivery of
property, forgery for valuable security, forged document, using as genuine a forged document, criminal misconduct ---Bail, grant of ---Further inquiry ---Allegation against the
accused person was that he fraudulently made illegal cash withdrawals of fund, causing huge loss to government exchequer ---Allegedly, an amount of Rs.25,633,300.00 had been
embezzled during the span commencing from year 2019 up till the complainant, (Chairman of Municipal Committee) came to know about the said illegal withdrawal of the funds from
development account of Municipal Committee in the year 2024 ---During such period of
time, besides accused -applicant Ex -Chief Officer Municipal Committee, and several other
officers, being Chief Officer Municipal Committee, discharged their duties as Administrators Municipal Committee, thus fixing the liability merely upon accused at such stage would be difficult, making his case one of further inquiry as contemplated under clause (2) of S.497 of Cr.P.C. ---As far as the case of other accused -applicant, Sweeper
Municipal Committee, was concerned, although Rs.9,677,300.00/ -had been recovered from
his account, but there was no evidence that he had withdrawn the said amount ---As per
prosecution, said accused -applicant came up with the plea that he had borrowed some
money from accused -applicant and in turn, had given him his cheque book with signatures
in order to encash his salary from bank directly, which also made his case one of further inquiry ---Mere receipt of funds in a bank account could not be construed as proof of
involvement in the crime due to insufficient and incomplete material, which could only be determined after recording of the evidence at the conclusion of the trial ---Entire case was
based upon documentary evidence, which had already been taken into possession, and as such the applicants after remand to the judicial custody were no more required for the purpose of interrogation and investigation, henceforth, keeping them in the custody would serve no purpose rather would amount to punishment before judgment ---It is better to err in
granting bail than to err in refusal because ultimate conviction and sentence could repair the wrong resulting from a mistaken relief of bail ---Post arrest bail application was
allowed, in circumstances.
2022 SCMR 419; 2024 SCMR 1525; 2024 SCMR 1567; 2024 SCMR 205 and 2024
SCMR 1210 ref.
Naeem Khan v. The State 2022 SCMR 419; Syed Sakhawat Hussain v. The State
2024 SCMR 1103; Muhammad Anwar v. The State 2024 SCMR 1567 and Ahmed Nawaz v. The State 2024 SCMR 1525 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497 ---Bail order ---Observations of Court ---Scope ---Observations made in a bail
order are tentative in nature and should not influence the merits of the case at trial.
Nadir Ali Chalgari for Applicants.
Yahya Baloch, APG assisted by Abdul Qayyum and Assistant Director Anti -
Corruption Department, Balochistan for the State.
Date of hearing: 11th October, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. --- The applicants seek bail in case vide FIR
No.3- S/2024 registered with Police Station Anti- Corruption Circle, Sibi for the offences
punishable under sections 408, 409, 420, 467, 468 and 471 of the Pakistan Penal Code, 1860
("P.P.C") read with section 5 (2) Act- II of 1947 for fraudulently making illegal cash
withdrawals of funds, causing huge loss to government exchequer.
2. The facts germane for disposal of the instant application are that complainant
Sardarzada Sher Afghan, Chairman Municipal Committee ("MC"), Kohlu got lodged the FIR ibid with the averments that illegal cash withdrawals of funds were made from development account bearing No.PK83NBPA0209004153769854 of MC, Kohlu by the officers -officials
of MC, Kohlu, thus inquiry No.02/Q/2024 was conducted. During course of inquiry, it was revealed that an amount of Rs.25,633,300.00 was illegal withdrawn through forged signatures since 2019 and onwards. According to the complainant, specimen signatures were sent to FSL, Quetta, whereafter report dated 07.08.2024 was received, wherein it was established that signatures of accused -applicants Muhammad Yousaf, Chief Officer MC,
Kohlu, Bangar Khan, Sweeper MC Kohlu and Jalal Marri Cashier -Sanitary Inspector, MC
Kohlu matched, whereafter an amount of Rs.9,677,300.00/ - was recovered from accused -
applicant Bangar Khan, Sweeper MC Kohlu, whereas remaining amount of Rs.15,956,000.00
is still recoverable.
The applicants made an attempt for grant of bail before Special Judge, Anti -
Corruption Balochistan, ("Trial Court"), which was turned down vide order dated 03.09.2024
("impugned order"), hence this application for post arrest bail.
3. Learned counsel for the applicants inter alia contended that crime has allegedly been
committed in a span of almost five years and during such period of time, several other officers held the charge of Chief Administrator MC, Kohlu, thus targeting the accused-applicant Muhammad Yousaf is nothing, but victimization. He further argued that there is also no incriminating material available against accused -applicants Jalal Marri, Cashier and
Bangar Khan Sweeper, MC, Kohlu for transferring embezzled fund into their accounts, which makes their case one of further inquiry. He maintained that Bangar Khan Sweeper MC, Kohlu has been made scapegoat, who has nothing to do with the allegations contained in the FIR. He also stated that mere excessive amount found in the account of accused -
applicant Bangar Khan does not incriminate him and that since the applicants have been remanded to judicial custody, therefore, refusal of bail shall amount to punishment before judgment, as such, requested for concession of bail to the applicants. He placed reliance upon judgments reported as 2022 SCMR 419, 2024 SCMR 1525, 2024 SCMR 1567, 2024 SCMR 205 and 2024 SCMR 1210.
Conversely, learned APG assisted by Assistant Director Anit -Corruption, Quetta
strenuously repudiated the contentions so put forth by learned counsel for the applicants and urged that there is sufficient material, enough for refusal of bail. He maintained that the chain of events and evidence on record linked the accused- applicants to the crime,
particularly, when positive report of FSL is available against them. It was also argued that the recovery of Rs.9,677,300.00/ - from the account of accused Bangar Khan Sweeper MC,
Kohlu is sufficient to incriminate the accused persons, thus prayed for dismissal of the bail application.
4. Heard. Record perused with the able assistance of learned counsel for the parties.
5. The applicants have been indicted for illegal withdrawal of development funds
amounting to Rs.25,633,300.00 from the account No.PK83NBPA0209004153769854 of MC, Kohlu pursuant to FIR No.3.S/2024 registered with Police Station Anti -Corruption circle,
Sibi, whereof Rs.9,677,300.00/ - have been recovered from the account of Bangar Khan
Sweeper, MC Kohlu, whereas amount of Rs.15,956,000.00 is still recoverable. Allegedly, accused -applicant Jalal Marri, being Cashier MC, Kohlu got issued cheque book illegally
from the National Bank of Pakistan ("NBP") with forged signatures of the then Chief
Officers and current Chairman MC, Kohlu and withdrew the embezzled amount with the collusion and connvivance of accused -applicant Muhammad Yousaf Ex -Chief Officer MC,
Kohlu.
6. Allegedly, an amount of Rs.25,633,300.00 has been embezzled during the span
commencing from year 2019 up till complainant Sardarzada Sher Afghan, being Chairman of MC, Kohlu came to know about the said illegal withdrawal of the funds from development account of MC, Kohlu in the year 2024. There is also no denial that during such period of time, besides accused -applicant Muhammad Yousaf Ex- Chief Officer MC, Kohlu several
other officers namely Muhammad Arif Khilji, Anayatullah Zarkoon, Khamis Khan Khetran, Imran Ahmed and Yaqoob Sherani, being Chief Officer MC, Kohlu discharged their duties as Administrators MC Kohlu, thus fixing the liability merely upon accused- applicants
Muhammad Yousaf and Jalal Marri at this stage would be difficult, making their case one of further inquiry as contemplated under clause (2) of section 497 of Cr.P.C.
7. As far as the case of accused -applicant Bangar Khan, Sweeper MC, Kohlu is
concerned, albeit Rs.9,677,300.00/ - have been recovered from his account, but there is no
evidence that he has withdrawn the said amount. As per prosecution, he came up with the plea that he had borrowed some money from accused- applicant Jalal Marri and in turn, had
given him his cheque book with signatures in order to encash his salary from the bank directly, which also makes his case one of further inquiry. The apex court in the case of "Naeem Khan v. The State" (2022 SCMR 419) and "Syed Sakhawat Hussain v. The State" (2024 SCMR 1103) held that mere receipt of funds in a bank account could not be construed as proof of involvement in the crime due to insufficient and incomplete material, which can
only be determined after recording of the evidence at the conclusion of the trial.
8. In such like cases, the entire case is based upon documentary evidence, which has
already been taken into possession, and as such the applicants after remand to the judicial
custody are no more required for the purpose of interrogation and investigation, henceforth,
keeping them in the custody would serve no purpose rather would amount to punishment before judgment. The Supreme Court in the case of "Muhammad Anwar v. The State" (2024 SCMR 1567) and "Ahmed Nawaz v. The State" (2024 SCMR 1525) held that it is better to err in granting bail than to err in refusal because ultimate conviction and sentence can repair the wrong resulting from a mistaken relief of bail.
9. For the foregoing reasons, the instant post arrest bail application is allowed and
consequent thereto, accused -applicants Muhammad Yousaf son of Ghulam Yaseen, Jalal
Marri son of Eido and Bangar Khan son of Muhammad Kareem are admitted to bail, subject to furnishing surety in the sum of Rs.500,000/ - (Five hundred thousand) each, with PR bond
of like amount to the satisfaction of the Additional Registrar of this Court or Trial Court.
The observations made hereinabove are tentative in nature, which shall not influence
the merits of the case at trial.
JK/109/Bal. Application allowedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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