PLJ 2010 Cr.C. (Karachi) 629

Present: Ahmed Ali M. Shaikh, J.

MUHAMMAD TAHIR--Applicant

versus

STATE--Respondent

Crl. Bail Application No. 470 of 2010, decided on 2.6.2010.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 409--Applicability of S. 409, PPC--Capacity of a Public Servant committed any breach of trust--No iota of evidence to show that applicant was entrusted with the property or he had dominion over the property in the capacity of a Public servant or had committed any breach of trust in respect of that property--In absence of such proof he cannot be charged u/S. 409, PPC. [P. 632] A

Administration of Justice--

----Bail cannot be withheld on the basis of presumption of guilt--Unless the prosecution prima facie satisfies the Court about culpability of a person--Bail cannot be withheld merely on the basis of presumption of guilt and essential question for determination in such circumstances would be regarding true character of transaction and the nature of offence which was committed--Unless in light of evidence the case is brought within the parameters of expression reasonable grounds to believe that the offence with which a person was being charged was committed by him--Accusation would not be sufficient to curtail his liberty. [P. 633] B

PLD 2003 SC 668 & 2009 SCMR 517, ref.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497(2)--Pakistan Penal Code, (XLV of 1860, Ss. 409, 218, 420, 468 & 471--Prevention of Corruption Act, 1947, S. 5(2)--Bail, grant of--Not fall within ambit of prohibitory clause--Dishonest disposal of property--Criminal breach of trust--Salary was withdrawn though Civil servant was out of the country--Prosecution must prove not only entrustment or dominion over property--Accused either dishonestly misappropriated converted, used or disposed of property--Application of S. 409, PPC required further enquiry--Ss. 420, 468 & 471 PPC are bailable while S. 468, PPC and S. 5(2) of Act, 1947 do not fall within ambit of prohibitory clause of S. 497(1) Cr.P.C. [P. 633] C

Bail--

----Suffering through cardiac disease--Sufficient ground to believe that the case of applicant required further inquiry--Applicant was also suffering through cardiac disease and also needs proper treatment which was not available in jail hospital--Bail was granted. [P. 634] D

Mr. Mehmood A. Qureshi, Advocate for Applicant.

Mr. Imtiaz Ali Jalbani, APG for State.

Date of hearing: 20.5.2010.

Order

Through this application applicant Muhammad Tahir @ Tahir Jaffar seeks post arrest bail in Crime No. 62/2009 of P.S. ACE. Karachi, registered under Sections 409, 420, 218, 468, 471, 34 PC read with Section 5(2) of Act-II of 1947.

Brief but relevant facts of the prosecution case are that during 2003 Mst. Habiba Khatoon, Primary School Teacher of Govt. Boys Primary School Jamaia Millia, Shah Faisal Town, Karachi, left Pakistan for Canada but her salary was withdrawn by ADOE Shaukat Ali though she was out of country. During enquiry it came on the record that after departure of the said lady teacher, Mst. Ishrat Anwar, the then Headmistress of the school, ADOE Akram Ijaz (since expired), Supervisor Tahir Jaffar (present applicant) and Headmaster Maqsood Shahid did not stop her salary and continuously drawn the same through manual bills from A.G. Sindh for the purpose of misappropriation, personal gain. It is further alleged that the salary of the lady teacher was withdrawn by Tahir Jaffar and Asma Rehmani, PST (sister of Mst. Habiba Khatoon). ADOE Shaukat Ali and Supervisor Tahir Jaffar managed her account in HBL Malir City Branch, Karachi, and withdrawn her salary through cheque but thereafter they withdrew through manual bills from A.G. Sindh thus caused heavy loss to Government Exchequer.

It is inter-alia contended that the applicant is innocent and has nothing to do with the above offence and he has been implicated in the alleged offence due to departmental intrigue; there is no evidence against the applicant that he prepared or issued the cheques or presented the cheques to the bank or received the alleged amount. Per learned counsel there is no evidence on record that the applicant is beneficiary of the alleged transaction. It is further contended that non of the prosecution witness has uttered a single word against the present applicant in his 161 Cr.P.C. statement, in fact the proceedings against the present applicant are based on dishonest investigation whereby the prosecution has deliberately suppressed the real facts of the case. Per learned counsel the applicant has been made escape goat by the high-ups as he had informed the higher authorities in respect of prevailing corruption in the department. In support of his contention, learned counsel for the applicant has submitted the copy of application dated 21.11.2007 alongwith office orders dated 21.11.2007 and 29.11.2007. Per learned counsel the applicant is known patient of Diabetic and Ischaemic Heart Disease, he has suffered anterior wall myocardial infaration and his (EF) Ejection Fraction (Left Ventricle) is working to the extent of 35%. Per learned counsel the applicant has already suffered one myocardial infaration and being Diabetic patient there is serious apprehension that he may go second myocardial infaration which can be proved fatal to his life. Per learned counsel the applicant needs proper treatment but such medical facilities are not available in the jail hospital. Learned counsel further contended that on the order of the trial Court the applicant was medically examined by Dr. Tariq Ashraf, Consultant Cardiologist. National Institute of Cardiovascular Diseases and the report of ECG, Echo-Cardiography and Nuclear Cardiology have been annexed with the bail application. He lastly contended that there are no reasonable grounds to believe the applicant guilty of the alleged offence but on the contrary there are sufficient grounds for believing that the case of the applicant needs further enquiry.

Learned A.P.O. for the State very candidly conceded the contentions raised by learned counsel for the applicant but opposed the bail plea of the applicant on the ground that his earlier bail application was dismissed by this Court.

Heard the learned counsel for the parties and perused the record.

Upon a perusal of record it appears that the allegation against the present applicant is that of criminal breach of trust therefore, the prosecution must prove not only entrustment or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he willfully offered some other person to do so. The prosecution must affirmatively prove these ingredients. During the course of arguments the Investigating Officer was present and on query as to what material he has collected against the present applicant with regard to the allegations levelled against him, he categorically stated that he could not collect any evidence against the applicant with regard to the allegations.

Upon a perusal of file it further reveals that the prosecution is not in possession of any proof that the applicant had prepared the cheques or got encashed the same from the concerned bank or he alongwith co-accused got opened a false bank account in the name of Mst. Habiba Khatoon. On query Investigating Officer disclosed that salary of the entire staff of school is being released by EDO to the concerned Headmaster who is issuing cheques to the staff members. He further disclosed that Mst. Asma Rehmani, real sister of Mst. Habiba Khatoon, was receiving the cheques of her sister. He further disclosed that cheques were prepared by one Qamar Sajid but he has not been challaned in this case. Upon a perusal of 161 Cr.P.C. statement of PW Muhammad Ahmed, Senior Clerk of the Education Department, it appears that one Abdul Majeed was preparing the bills and submitting the same to the A.G. Office.

So far the applicability of Section 409 PPC is concerned, there is no iota of evidence to show that the applicant was entrusted with the property or he had dominion over the property in the capacity of a public servant or he has committed any breach of trust in respect of that property, hence, in absence of such proof he cannot be charged under Section 409 PPC. It is a fundamental principle of criminal administration of justice that unless the prosecution prima facie satisfies the Court about the culpability of a person, the bail to him cannot be withheld merely on the basis of presumption of guilt and the essential question for determination in such circumstances would be regarding the true character of the transaction and the nature of offence which was allegedly committed, therefore, unless in the light of evidence in the hands of prosecution, the case is brought within the parameters of expression `reasonable grounds' to believe that the offence with which a person was being charged was committed by him, the bare accusation would not be sufficient to curtail his liberty as held by their lordships in the case of Abdul Aziz Khan Niazi Vs. The State through Chairman, NAB, Islamabad (PLD 2003 S.C. 668). In the case of Abdul Rashid Nasir and others Vs. The State (2009 SCMR 517) it has been held by their lordships that to constitute an offence under Section 409, PPC, there must not only be entrustment but dishonest misappropriation or conversion to one's own use or dishonest disposal of property by the offender. In the case in hand such ingredients are absolutely lacking, therefore, the application of Section 409 PPC requires further enquiry. So far Sections 420, 218 and 471 are concerned, same are bailable while Section 468 PPC and Section 5(2) of Act-II of 1947 do not fall within the ambit of prohibitory clause of Section 497(1) Cr.P.C.

Learned counsel has also pressed this bail application on the medical ground. Upon a perusal of letter dated 03.03.2010 issued by Medical Officer, Central Prison, Karachi, it appears that the applicant is known Cardiac and Diabetic case. He also suffers through chest pain on/ off, difficulty in breathing on/off, palpitation on/off and pain in right shoulder. Such opinion is based upon the test and examination conducted by the Cardiology Unit, Civil Hospital. Karachi Per medical certificate issued by Dr. Syed Hamid Ali Tirmizey of National Institute of Cardiovascular Diseases, Karachi, he found evidence of medium size fixed perfusion defect of high severity involving apical and mid cavity anterior wall apex, apical anteroseptal wall with evidence of apical aneurysm.

From the above certificate and letter it appears that the applicant is a known patient of Diabetic and Heart patient, therefore, he deserves the concession of bail on medical ground.

I have also perused the copy of application dated 21.11.2007 which reveals that the applicant had moved application against some officials of the Education Department for their involvement in the alleged corruption and other serious charges against Syed Shoukat Ali. It appears that same application was submitted before the Secretary Education but till today no step has been taken in order to ascertain the truth or falsehood of the allegations levelled in the application.

For what has been discussed above and in the light of dictum laid down by their lordships in the aforesaid cases, I am of the considered view that there are sufficient grounds to believe that the case of the applicant requires further enquiry. Moreover the applicant is also suffering through Cardiac disease and also needs proper treatment which is not available in the jail hospital.

For the foregoing reasons by a short order dated 20.05.2010, the applicant Muhammad Tahir @ Tahir Jaffar was granted bail subject to furnishing solvent surety in the sum of Rs. 200,000/- (Rupees Two Hundred Thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court.

The observations made in this order are tentative in nature and shall not prejudice the case of either party.

(R.A.) Bail granted.