THE HIGH COURT OF SINDH AT KARACHI
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BAIL AFTER ARREST
Cr. Bail Appln. No.139, 165, 175, 210, 259 of 2018 |
BAIL BEFORE ARREST
Cr. Bail Applns. No.79, 81, 83, 84, 85, 94, 95, 111, 117, 121, 154, 176, 280 of 2018 |
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POST-ARREST BAIL APPLICATIONS
Applicants : Shahzad Riaz (Cr. Bail Appln. No.
139/2018) through M/s. Khawaja Shamsul Islam, Imran Taj, & Shahzad Mehmood, Advocates.
Junaid Ahmed (Cr. Bail Appln. No.
165/2018) through Asif Ali Prizada, Advocate.
Muhammad Imran & Abdul Rasheed (Cr. Bail Appln. No.175/2018) through Mr. Asif Ali Pirzada, Advocate.
Shoukat Hussain (Cr. Bail Appln. No.210/2018) through Mr. Asif Ali Pirzada, Advocate.
Shahjahan Shah, Khalid Hussain and Aftab Ahmed Mastoi (Cr. Bail Appln. No.259/2018) through M/s. Haq Nawaz Talpur, Barrister Jamal Bukhari & Abdul Aziz Meo, Advocates.
PRE-ARREST BAIL APPLICATIONS
Applicants : Mukhtiar Hussain Khan (Cr. Bail
Appln. No.79/2018) through M/s. Sayed Asad Abbas Shirazi, Abdul Nabi Joyo & Rao Zahid Ali, Advocates.
Lakhmi Chand Ahuja (Cr. Bail Appln. No.81/2018) through M/s. Wazeer Hussain Khoso & Irfan Ali Keerio, Advocates.
Muhammad Hayat Bhatti, Aijaz Ahmed Tunio, Shahid Parwaiz Khanzada, Qurban Ali Channa, Muhammad Awais Qureshi, Abdul Hameed Bughiyo, Syed Muhammad Arif, Muhammad Aslam & Rajab Ali (Cr. Bail Appln. No.83/2018) through M/s. Haq Nawaz Talpur, Barrister Jamal Bukhari & Abdul Aziz Meo, Advocates.
Toufeeq Ahmed Soomro & Rana Muhammad Imran (Cr. Bail Appln. No.84/2018) through Mr. Asif Ali Pirzada, Advocate.
Abdul Subhan Shah (Cr. Bail Appln. No.85/2018) through M/s. Wazeer Hussain Khoso, Syed Shabeer H. Shah & Irfan Ali Advocates.
Rehan Ahmed, Sajjad Ahmed, Mohammad Afzal, Mehmood Zakria, Mohammad Hanif, Wasim Akhtar, Ghulam Abbas, Shakeel Ahmed Shaikh, Ghafoor Hassan Zardari, Zulfiqar Ali Jutt, Irshad Ahmed & Zahid Mehmood Jeewani (Cr. Bail Appln. No.94/2018) through M/s. Shaikh Jawaid Mir, Mrs. Aliya Malik, Hidayat Ali Laghari, Advocates & M/s. Yawer Faruqui & Mr. Asad Ali Riar, Advocates.
Muhammad Ashfaque Sheikh & Haibat Khan Nurani (Cr. Bail Appln. No.95/2018) through M/s. Syed Amir Ali Shah Jeelani & Inayatullah, Advocates.
Shahid Iftikhar Ahmed, Muhammad Ayoub Rajput, Muhammad Murad Babbar, Moeenuddin, Abdul Wajid Khan, Muhammad Shamim Siddiqui, Muhammad Nadeem Siddiqui (Cr. Bail Appln. No.111/2018) through M/s. Malik Naeem Iqbal, Malik Altaf Javed, Advocates & Barrister Faizan H. Memon.
Yousuf Ali Shah (Cr. Bail Appln. No.117/2018) through M/s. R. Masood Ahmed Qazi & Ubedullah A. Abro, Advocates.
Syed Manzoor Ali Shah (Cr. Bail Appln. No.121/2018) through M/s. Malik Naeem Iqbal, Malik Altaf Javed, Advocates & Barrister Faizan H. Memon.
Abdul Mujeeb (Cr. Bail Appln. No.154/2018).
Ghulam Shabbir Shahi (Cr. Bail Appln. No.176/2018) through Mr. Irshan Ahmed Mughal, Advocate.
Qazi Masood Ahmed (Cr. Bail Appln. No.280/2018) through M/s. Malik Naeem Iqbal, Malik Altaf Javed, Advocates & Barrister Faizan H. Memon.
Respondent : The State through Chairman, Anti-
Corruption Establishment, Province of Sindh through Mr. Nasrullah Korai, Special Prosecutor, Anti-Corruption Establishment, Karachi along with Investigating Officer, Inspector Zahid Hussain Mirani of Anti-Corruption Establishment, Karachi & Mr. Sagheer Abbasi, Assistant Prosecutor General, Sindh
Date of hearings : 27th, 28th & 29th March, 2018
Date of Order : 03.04.2018
ORDER
Abdul Maalik Gaddi, J. – All the above titled bail applications are being disposed of by this consolidated order, as the same arise out of one FIR bearing No.29 of 2017 dated 04.05.2017 for offence under Sections 109/409/420/467/468/471 and 34 PPC read with Section 5(2) of Act-II of 1947 registered at police station Anti-Corruption Establishment, Karachi.
2. It is pertinent to mention here that through Criminal Bail Applications No.79, 81, 83, 84, 85, 94, 95, 111, 117, 121, 154, 176, 280 of 2018, the applicants seek confirmation of ad-interim pre-arrest bail already granted to them by this Court vide orders dated 17.01.2018, 18.01.2018 and 22.01.2018, 23.01.2018, 29.01.2018, 02.02.2018 and 22.02.2018 respectively, whereas, through rest of five Bail Applications bearing No.139, 165, 175, 210 and 259 of 2018, the applicants seek post-arrest bail in connection with above FIR after failure to seek such relief from the lower forum.
3. The brief facts of the prosecution case as per FIR are as under:-
“in the year 2009-10 Government of Sindh announced and implemented a scheme for provision of subsidized tractors to growers of Sindh bearing minimum land so that Agriculture Sector may be optimally tapped to seek yield from crops. The Subsidy was to be given from Rs.2 to 3 Lacs per tractors to the growers. In the year 2009 to 2010 and 2011 to 2012 Agriculture department had chosen 9 dealers including M/s. Shahzad Trade Link for the said purpose. Total 14433 Tractors were delivered in the year 2009 to 2010 and 2011 to 2012, out of which 5780 Tractors were to be delivered to M/s. Shahzad Trade Link. M/s. Shahzad Trade Link, being the leading leader of year 2009 to 2010 and 2011 to 2012 purportedly delivered 2,500 Tractors to the growers who declared in balloting.
From the record and statements it surfaced that M/s. Shahzad Trade Link had actually exploited the situation in a fraudulent manner by first participating in ballot through CNIC of those growers who did not know about the scheme nor did they get the tractor actually so through identity theft M/s. Shahzad Trade Link could participate in ballot those who emerged successful in ballot were to pay the amount, less subsidy, through pay order/demand draft so again M/s. Shahzad Trade Link resorted to fraudulent payment on behalf of dummy growers by himself through some pay orders/draft but in majority of cases they were known to have paid in case which was not in accordance with the policy of the scheme whatsoever he paid through pay order which were paid through one Bank/where otherwise he operated his own account so that it cannot be a operated his own account so that it cannot be a coincidence that all successful growers whose number ran in hundreds paid the amount through same bank, hence, the manipulation becomes crystal and clear in instance case. Finally in order to claim the subsidy accused dealer issued an invoice which reflected all the requisite ingredients as prescribed by policy. However, the number of pay order/demand draft kept missing from invoices issued by him. The amount for payment of subsidy was processed by the Directors Engineering Agriculture Department without considering the missing pay orders/demand drafts number on invoices they have also been found involved into facilitation of offence.
From the facts/evidence it is established that usurpation of Rs.2 to 3 lacs subsidy/tractor by that dealer in connivance with officers/officials of Engineering Workshop, Agriculture Department by participating in balloting of, first come first serve, scheme through, identify theft of various growers, on the basis of their CNIC sought fraudulently, and then claiming of subsidy per tractors without handing over tractors to grower practically. The fraud amounting to Rs.1,407.2 M was committed by M/s. Shahzad Trade Link solely. From the above facts/evidence a prima facie case is made out under Sections 109/409/420/467/468/471/34 PPC read with Section 5(2) Act-II of 1947 against 1) Shahzad Ali, CEO, M/s. Shahzad Trade Link, 2) Agha Abdul Qadir the then Director Agriculture Engineering, Hyderabad Sindh, 3) Shakeel Ahmed Shaikh, Director 4) Atta-ur-Rehman Mari, Director.
4. As per prosecution story, the allegations against the applicant Shahzad Riaz is that he was proprietor/owner of M/s. Shahzad Trade Link and M/s. Shahzad Links (Pvt.) Limited, simultaneously. This applicant arranged people of locality as growers to participate in the balloting of 6000 Tractors through CNIC arranged by the co-accused (Sub-dealers/ distributors/ suppliers) of accused Shahzad Riaz throughout Sindh. This applicant/accused in collusion with the Officers/Members of Monitoring Committee of Agriculture Engineering Department, Government of Sindh and his employees Aamir Rafiq of M/s. A.R. Enterprises, Rana Muhammad Imran of M/s. M.I. Enterprises prepared fake and bogus record in respect of Tractor Subsidy Scheme 2011-2012. The applicant/accused fraudulently and with malice prepared pay orders of Rs.7,35,000/- each of his own amount through Account No.173652 of M/s. A.R. Enterprises; Account No.173829 of M/s. M.I. Enterprises; Account No.170322 of Shahzad Link (Pvt.) Limited of Habib Metropolitan Bank; Account No.56272 UBL of Shahzad Trade Link; Account No.577979 NIB of Shahzad Trade Link; Account No.14350 Bank Al-Falah of Shahzad Trade Link; Account No.75634 MCB of Shahzad Trade Link; Account No.267736 ABL of Shahzad Trade Link. Out of total 3033 pay orders, he deposited 1993 pay orders in HBL Sindh Secretariat Branch Account No.9167900350703 for claiming Subsidy amount of Tractors Subsidy Scheme No.2011-12. Accused fraudulently and with malice received an amount of Rs.23,61,00,000/- against 787 Tractors on the basis of fake and bogus record in respect of Tractors Subsidy Scheme 2011-12.
5. Mr. Khawaja Shamsul Islam, learned counsel for the applicant Shahzad Riaz argued that the allegations against the applicant are false and have been leveled by the complainant due to enmity; that the alleged incident took place 2009 to 2012, but FIR was registered on 04.05.2017, after the delay of about 7-8 years, for which no satisfactory explanation has been furnished, therefore, according to him on this ground alone, false implication of the applicant/accused in this case with due deliberation and consultation could not be ruled out; that applicant has not committed any offence as alleged by the complainant; that in this matter, complainant Inspector Zahid Hussain Mirani, who himself conducted the investigation, therefore, his investigation being investigating officer of the case, could not be safely relied upon; that in this matter, growers have not been arrayed as accused or witness, therefore, according to him, no case against the applicant is made out; that Government of Sindh/prosecution agency filed Civil Suit No.1570 of 2017 before this Court on 12.06.2017 against this applicant and others before accepting the final Challan in respect of so-called embezzlement of amount (subject matter of the present FIR) and this Court declined to attach the bank accounts of the applicant. The aforesaid suit is still pending adjudication and it is yet to be determined in the said suit, whether the present applicant was responsible to return the embezzlement amount or not, and this aspect of the case requires evidence; that co-accused namely Muhammad Ahsan, Sabir, Baboo Aslam and Aamir Rafiq have been granted post-arrest bail by the trial Court almost on same allegations, therefore, according to him the present applicant is also entitled for same relief; that the applicant has a long standing litigation with one Anwar Majeed, who is front man of powerful person in the Sindh Government. Against said Anwar Majeed, applicant obtained several orders in respect of Belarus Tractors and injunction application was allowed and this case is outcome of that enmity; that applicant is innocent and has not caused any loss to the public exchequer as falsely alleged. Admittedly the applicant imported aforesaid Belarus Tractors from Rusia and paid entire custom duty. There is false allegation against the applicant regarding subsidy scam which is totally false as admittedly the applicant has a long list of agriculturists. There are four sitting Ministers involved. It is absolutely inconceivable that the applicant can pay any token money to those persons; that challan has been submitted and this applicant alongwith co-accused are no more required for investigation and prosecution has shown number of witness in challan sheet and case is at initial stage, even the Charge has not been framed and the whole case allegedly revolves towards the documentary evidence, which is in possession of the prosecution and no question does arise for tampering the same at the hands of the applicants and it is yet to be determined at the time of trial whether the applicant and co-accused are involved in the commission of crime or otherwise requires further probe, as such, under the circumstances, there would be no purpose to serve out if the applicant is kept behind the bars for an indefinite period or the other applicants who are on interim pre-arrest bail are sent to jail; That the punishment of the offences shown in the challan do not fall within the prohibitory clause of section 497 Cr.P.C. except 5(2) of Act-II, 1947 and it is yet to be determined at the time of trial whether the said section in the circumstances of the case attracted in the present case or otherwise. During the course of arguments, learned counsel for the applicant has also reiterated the same facts and grounds, which he has urged in his bail application. In support of his contentions, learned counsel has relied upon the cases of (1) Rafiq Haji Usman v. Chairman, NAB & another reported as 2015 SCMR 1575, (2) MTW Pak Assembling Industries v. Shahzad Riaz reported as 2017 CLC 1140, (3) Muhammad Ameen v. Master Bashir Ahmed reported as 2006 SCMR 969, (4) Miraj Khan v. Gul Ahmed & others reported as 2000 SCMR 122, (5) Nadir Jan v. The Chairman, NAB & others reported as 2018 MLD 6, (6) Fawad Rehman v. The State reported as 2017 YLR 1957, (7) Irfan Yaqoob v. The State reported as 2014 MLD 486, (8) Lal Muhammad v. The State reported as 2014 MLD 1183, (9) Abdul Rehman v. The State reported as 2014 YLR 2083, (10) Sarfaraz Ahmed v. The State reported as 2014 YLR 695, (11) Muhammad Shabbir v. The State reported as 2017 P.Cr.L.J 143 and (12) Ashique Muhammad v. The State reported as 2014 YLR 1784.
6. The allegations against the accused Junaid Ahmed is that he being Tractor Dealer of Shikarpur in collusion with accused Shahzad Riaz and Officers of Monitoring Committee Agriculture Engineering Department Sindh signed fake delivery receipts and made fake photo sessions with growers in respect of Tractor Subsidy Scheme 2011-12 for the purpose of selling out 787 Tractors having same Engine and Chassis numbers to in Province of Punjab, KPK, Balochistan and Sindh on higher rates. It is argued by Mr. Asif Ali Pirzada, learned counsel for the applicant that the name of applicant is not mentioned in FIR or interim challan, but his name has been included by the investigating officer of the case in the Final Challan Sheet without any evidence just to show his efficiency, although, this applicant has no concerned with commission of crime and he is government retired officer; that no privity of contract was between the government and the present applicant; that complainant has not been able to show that how much tractors have been supplied to each of the applicants/growers nor any transaction in their account has been shown, as such complainant has failed to examined any grower to show that no tractor was delivered to the grower; that co-accused Sabir, Aamir Rafiq and Baboo Aslam have been granted bail by the trial Court, hence, the present applicant is also entitled for bail.
7. The allegations against the accused Muhammad Imran and Abdul Rasheed as per prosecution case are that these applicants are Tractor Dealers of Mirpurkhas, and they in collusion with accused Shahzad Riaz and officers/officials of Monitoring Committee Agriculture Engineering Department Sindh signed fake delivery receipts and made fake photo sessions with growers in respect of Tractor Subsidy Scheme 2011-12 for the purpose of selling out 787 Tractors having same Engine and Chassis numbers in Province of Punjab, KPK, Balochistan and Sindh on higher rates. Mr. Asif Ali Pirzada, learned counsel for the applicants reiterated the same arguments, which are mentioned at preceding paragraph No.5 of this order and so also relied upon the synopsis furnished by him.
8. As per prosecution story, the allegations against the accused Shoukat Hussain are that he is Tractor Dealer of Thatta, he in collusion with accused Shahzad Riaz and officers/officials of Monitoring Committee Agriculture Engineering Department Sindh signed fake delivery receipts and made fake photo sessions with growers in respect of Tractor Subsidy Scheme 2011-12 for the purpose of selling out 787 Tractors having same Engine and Chassis numbers in Province of Punjab, KPK, Balochistan and Sindh on higher rates. Mr. Asif Ali Pirzada, learned counsel for the applicant reiterated the same arguments, which are mentioned at preceding paragraph No.5 of this order and so also relied upon the synopsis furnished by him.
9. The allegations against the accused Shahjahan Shah, Khalid Hussain and Aftab Ahmed Mastoi as alleged by the prosecution are that they were the Members of Monitoring Committee constituted by DG Agriculture Engineering Hyderabad to monitor delivery of Tractors through Authorized Dealers to the growers in Sindh on the contrary they in collusion with accused Shahzad Riaz and his sub-dealers got fake delivery of Tractors Subsidy Scheme 2011-12 and made fake photo sessions demonstrating to have delivered the tractors which they did not deliver. On reporting of them, accused Shahzad Riaz succeeded to claim subsidy amount of purportedly delivered Tractors which tractors he sold within and out of Sindh province. These applicants/accused omitted to perform their duties of monitoring as per instructions they were given, on the contrary they facilitated accused Shahzad Riaz for fraud and cheating through forgery. Mr. Haq Nawaz Talpur, learned counsel for the applicants argued that neither the applicants nominated in the FIR nor in the interim challan, however, the applicants were cited as accused in final challan sheet. During the course of arguments, learned counsel has draws attention towards PC-1 annexed at page 29, relevant portion whereof is at page 43, wherein modes of payment have been prescribed and states that clause (vii) stipulates that the payment would be made to the dealers/authorized agent much before the physical delivery of the tractors. Therefore, the allegations of the prosecution completely belied by that delivery report/certificate was condition precedent for payment of subsidy of the tractors rather the delivery of tractor was condition subsequent. Hence, the alleged role attributed to the applicants is of no significance; that according to prosecution, they have put forth three test cases, which is available at page 129 of the case file i.e. typed page 3 of the final challan sheet. The second test case of Ghulam Qadir son of Ibrahim Chandio, who approached to the trial Court for release of his tractor by filing an application under Section 516-A Cr.P.C. and accordingly the tractor was released. Furthermore, the said Ghulam Qadir attached Registration Certificate of the tractor, wherein it has been clearly written that the said tractor has been delivered to him under the Sindh Tractor Subsidy Scheme and the said tractor is not transferable for three years; the payment in respect of the said tractor was made to the main accused Shahzad Riaz on 18.05.2012, which is available at page 333 of the case file, whereas he has delivered the tractor to the said Ghulam Qadir was made on 27.11.2012 almost after the delay of more than six months of the payment. This fact also strengthens the argument that the payment as stipulated in PC-1 was to be made much prior to physical delivery of the tractor. During course of arguments, learned counsel also draws the attentions of this Court towards the condition No.2 of Terms of Reference available at page 117 and argued that the allegations against the prosecution was that they have not been acted strictly in accordance with the terms of reference, is not established from the material available on record for the reasons that it was not the job of monitoring committee rather it was the job of Director General Agricultural Engineering and Water Management Sindh, Hyderabad, as prescribed at page 6 of the PC-1, typed page 6(xi); that the allegation of fake photo sessions made by the applicants/accused and the physical delivery have not been handed over to the successful growers would have been established by recording the statements under Section 161 Cr.P.C. of all 787 growers; under the circumstances, the case of present applicants/accused requires further inquiry to bring the guilt of the accused at home; lastly learned counsel prayed for grant of bail.
10. As per prosecution story, the allegations against the accused Mukhtiar Hussain Khan are that he is Tractor Dealer of Nawab Shah and he in collusion with accused Shahzad Riaz and officers/officials of Monitoring Committee Agriculture Engineering Department Sindh signed fake delivery receipts and made fake photo sessions with growers in respect of Tractor Subsidy Scheme 2011-12 for the purpose of selling out 787 Tractors having same Engine and Chassis numbers in Province of Punjab, KPK, Balochistan and Sindh on higher rates. It is argued by Mr. Abdul Nabi Joyo, learned counsel for the applicants that the name of applicant is not mentioned in FIR or interim challan, but his name has been included by the investigating officer of the case in the Final Challan Sheet without any evidence just to show his efficiency, although, this applicant has no concerned with commission of crime; that no privity of contract was between the government and the present applicant; that complainant has not been able to show that how much tractors have been supplied to each of the applicants/growers nor any transaction in their account has been shown, as such complainant has failed to examined any grower to show that no tractor was delivered to the growers; hence, the present applicant is also entitled for bail.
11. It is alleged against the accused Lakhmi Chand Ahuja by the prosecution that that he is Tractor Dealer of M/s. Pak Autos Larkana and he in collusion with accused Shahzad Riaz and officers/officials of Monitoring Committee Agriculture Engineering Department Sindh signed fake delivery receipts and made fake photo sessions with growers in respect of Tractor Subsidy Scheme 2011-12 for the purpose of selling out 787 Tractors having same Engine and Chassis numbers in Province of Punjab, KPK, Balochistan and Sindh on higher rates. Mr. Wazeer Hussain Khoso, learned counsel for the applicant argued that that the name of applicant is not mentioned in FIR or interim challan, but his name has been included by the investigating officer of the case in the Final Challan Sheet without any evidence just to show his efficiency, although, this applicant has no concerned with commission of crime; that only one time balloting process was conducted; that the successors in balloting process have not been shown as witness in this case; that no officials of balloting process have been joined in this case on the contrary, they have been let of by the prosecution, it means that no fraud has been committed; lastly, he prayed for grant of bail by following the rule of consistency.
12. The allegations against the accused Muhammad Hayat Bhatti, Aijaz Ahmed Tunio, Shahid Parwaiz Khanzada, Qurban Ali Channa, Muhammad Awais Qureshi, Abdul Hameed Bughiyo, Syed Muhammad Arif, Muhammad Aslam and Rajab Ali as alleged by the prosecution are that they were the Members of Monitoring Committee constituted by DG Agriculture Engineering Hyderabad to monitor delivery of Tractors through Authorized Dealers to the growers in Sindh on the contrary they in collusion with accused Shahzad Riaz and his sub-dealers got fake delivery of Tractors Subsidy Scheme 2011-12 and made fake photo sessions demonstrating to have delivered the tractors which they did not deliver. On reporting of them, accused Shahzad Riaz succeeded to claim subsidy amount of purportedly delivered Tractors which tractors he sold within and out of Sindh province. These applicants/accused omitted to perform their duties of monitoring as per instructions they were given on the contrary they facilitated accused Shahzad Riaz for fraud and cheating through forgery. Mr. Haq Nawaz Talpur, learned counsel for the applicants has reiterated the same arguments, which are mentioned at preceding paragraph No.8 of this bail order and so also relied upon the synopsis furnished by him.
13. As per prosecution case, the allegations against the accused Toufeeq Ahmed Soomro are that he was the Member of Monitoring Committee constituted by DG Agriculture Engineering Hyderabad to monitor delivery of Tractors through Authorized Dealers to the growers in Sindh on the contrary he in collusion with accused Shahzad Riaz and his sub-dealers got fake delivery of Tractors Subsidy Scheme 2011-12 and made fake photo sessions demonstrating to have delivered the tractors which they did not deliver. On reporting of him, accused Shahzad Riaz succeeded to claim subsidy amount of purportedly delivered Tractors which tractors he sold within and out of Sindh province. It is alleged by the prosecution against accused Rana Muhammad Imran that he fraudulently and with malice facilitated accused Shahzad Riaz to claim Tractors Subsidy amount through his Company M.I. Enterprises and fraudulently made Pay Order of Rs.735,000/- each in favour of M/s. Shahzad Links Pvt. Limited from his Account No.173829 HMB. Mr. Asif Ali Pirzada, learned counsel for the applicants adopted the arguments of Mr. Haq Nawaz Talpur, Advocate to the extent of applicant Toufeeq Ahmed Soomro, and for other applicant Rana Imran, he reiterated the same arguments, which are mentioned at preceding paragraph No.5 of this order and so also relied upon the synopsis furnished by him.
14. The allegations against accused Abdul Subhan Shah as alleged by the prosecution are that he was the Member of Monitoring Committee constituted by DG Agriculture Engineering Hyderabad to monitor delivery of Tractors through Authorized Dealers to the growers in Sindh on the contrary he in collusion with accused Shahzad Riaz and his sub-dealers got fake delivery of Tractors Subsidy Scheme 2011-12 and made fake photo sessions demonstrating to have delivered the tractors which they did not deliver. On reporting of him, accused Shahzad Riaz succeeded to claim subsidy amount of purportedly delivered Tractors which tractors he sold within and out of Sindh province. This applicant/accused omitted to perform his duties of monitoring as per instructions he was given on the contrary he facilitated accused Shahzad Riaz for fraud and cheating through forgery. Mr. Wazeer Hussain Khoso, learned counsel for the applicants has reiterated the same arguments, which are mentioned at preceding paragraph No.10 of this order.
15. As per prosecution story, the allegations against the accused Rehan Ahmed, Sajjad Ahmed, Mohammad Afzal, Mehmood Zakria, Mohammad Hanif, Wasim Akhtar, Ghulam Abbas, Shakeel Ahmed Shaikh, Ghafoor Hassan Zardari, Zulfiqar Ali Jutt, Irshad Ahmed and Zahid Mehmood are that they were Tractor Dealers in different areas of Sindh and they in collusion with accused Shahzad Riaz and officers/officials of Monitoring Committee Agriculture Engineering Department Sindh signed fake delivery receipts and made fake photo sessions with growers in respect of Tractor Subsidy Scheme 2011-12 for the purpose of selling out 787 Tractors having same Engine and Chassis numbers in Province of Punjab, KPK, Balochistan and Sindh on higher rates. It is argued by Mr. Shaikh Jawaid Mir and Mr. Yawer Faruqui, learned counsel for the applicants argued that neither the name of applicants/accused are nominated in the FIR nor in the interim challan, but their names have been included in the final challan sheet by the prosecution; that the growers/beneficiaries of Subsidy Tractors Scheme have not been shown as accused or witnesses in the challan sheet, but according to them, the name of growers/beneficiaries have been shown by the investigating officer in column No.2 with blue ink that is to say, not sent up for trial; that this matter is also investigated by the NAB authorities, but the inquiry was closed; that there is no direct evidence against the applicants to connect them in the present crime; that during investigation, prosecution miserably failed to recover any fraudulent amount, no personal gain established in the final charge sheet; that pre-imminently it is fit case for further inquiry into the guilt of applicants/accused; lastly prayed for grant of bail by following the rule of consistency. In support of their contentions, learned counsel has relied upon the cases of Lal Muhammad Kahhoro and others v. The State reported as 2007 SCMR 843, Muzammil Riaz v. The State reported as 2010 MLD 1971 and Muhammad Akbar Pasha v. The State reported as 2010 MLD 1096,
16. The allegations against the accused Muhammad Ashfaque Sheikh and Haibat Khan Nurani are that they were the Member of Monitoring Committee constituted by DG Agriculture Engineering Hyderabad to monitor delivery of Tractors through Authorized Dealers to the growers in Sindh on the contrary they in collusion with accused Shahzad Riaz and his sub-dealers got fake delivery of Tractors Subsidy Scheme 2011-12 and made fake photo sessions demonstrating to have delivered the tractors which they did not deliver. On reporting of them, accused Shahzad Riaz succeeded to claim subsidy amount of purportedly delivered Tractors which tractors he sold within and out of Sindh province. These applicants/accused omitted to perform their duties of monitoring as per instructions they were given on the contrary they facilitated accused Shahzad Riaz for fraud and cheating through forgery. Mr. Syed Amir Ali Shah Jeelani, learned counsel for the applicants argued that the names of applicants are not mentioned in FIR or interim challan, but their names have been included by the investigating officer of the case in the Final Challan Sheet without any evidence just to show his efficiency, although, this applicants have no concerned with commission of crime; that no privity of contract was between the government and the present applicants; that complainant has not been able to show that how much tractors have been supplied to each of the applicants/growers nor any transaction in their account has been shown, as such complainant has failed to examined any grower to show that no tractor was delivered to the growers; hence, the present applicants is also entitled for bail.
17. The prosecution story as alleged against the accused Shahid Iftikhar Ahmed, Muhammad Ayoub Rajput, Muhammad Murad Babbar, Moeenuddin, Abdul Wajid Khan, Muhammad Shamim Siddiqui, Muhammad Nadeem Siddiqui are that they were the Member of Monitoring Committee constituted by DG Agriculture Engineering Hyderabad to monitor delivery of Tractors through Authorized Dealers to the growers in Sindh on the contrary they in collusion with accused Shahzad Riaz and his sub-dealers got fake delivery of Tractors Subsidy Scheme 2011-12 and made fake photo sessions demonstrating to have delivered the tractors which they did not deliver. On reporting of them, accused Shahzad Riaz succeeded to claim subsidy amount of purportedly delivered Tractors which tractors he sold within and out of Sindh province. These applicants/accused omitted to perform their duties of monitoring as per instructions they were given on the contrary they facilitated accused Shahzad Riaz for fraud and cheating through forgery. By adopting the arguments advanced by Mr. Yawer Faruqui, Mr. Wazeer Hussain Khoso and Mr. Asif Ali Pirzada, Advocates, it is argued by Mr. Malik Naeem Iqbal, learned counsel for the applicants that the names of applicants are not mentioned in FIR or interim challan, but their names have been included by the investigating officer of the case in the Final Challan Sheet without any evidence just to show his efficiency, although, this applicants have no concerned with commission of crime; that no specific allegations have been leveled against the applicants. Since the growers have neither been sent up for trial not they have been associated as witness, therefore, no yardstick is available with the prosecution to testify the genuineness or otherwise of various documents; that law of Pakistan does not provide any idea of pre-trial conviction as such, in the interest of justice, the applicants are entitled for grant of bail.
18. The allegations against the accused Yousuf Ali Shah are that he was the Member of Monitoring Committee constituted by DG Agriculture Engineering Hyderabad to monitor delivery of Tractors through Authorized Dealers to the growers in Sindh on the contrary he in collusion with accused Shahzad Riaz and his sub-dealers got fake delivery of Tractors Subsidy Scheme 2011-12 and made fake photo sessions demonstrating to have delivered the tractors which they did not deliver. On reporting of him, accused Shahzad Riaz succeeded to claim subsidy amount of purportedly delivered Tractors which tractors he sold within and out of Sindh province. This applicant/accused omitted to perform his duties of monitoring as per instructions he was given on the contrary he facilitated accused Shahzad Riaz for fraud and cheating through forgery. It is argued by Mr. R. Masood Ahmed Qazi, learned counsel for the applicant that the name of applicant is not mentioned in FIR or interim challan, but his name has been included by the investigating officer of the case in the Final Challan Sheet without any evidence just to show his efficiency, although, this applicant has no concerned with commission of crime; that complainant has not been able to show that how much tractors have been supplied to each of the applicants/growers nor any transaction in their account has been shown, as such complainant has failed to examined any grower to show that no tractor was delivered to the growers; hence, the present applicants is also entitled for bail.
19. The story as alleged by the prosecution against the accused Syed Manzoor Ali Shah are that he was the Member of Monitoring Committee constituted by DG Agriculture Engineering Hyderabad to monitor delivery of Tractors through Authorized Dealers to the growers in Sindh on the contrary he in collusion with accused Shahzad Riaz and his sub-dealers got fake delivery of Tractors Subsidy Scheme 2011-12 and made fake photo sessions demonstrating to have delivered the tractors which they did not deliver. On reporting of him, accused Shahzad Riaz succeeded to claim subsidy amount of purportedly delivered Tractors which tractors he sold within and out of Sindh province. Mr. Malik Naeem Iqbal, learned counsel for the applicant has reiterated the same arguments, which are mentioned in the preceding paragraph No.16 of this order and so also relied upon the synopsis furnished by him.
20. The allegations against the accused Abdul Mujeeb are that he was the Member of Monitoring Committee constituted by DG Agriculture Engineering Hyderabad to monitor delivery of Tractors through Authorized Dealers to the growers in Sindh on the contrary he in collusion with accused Shahzad Riaz and his sub-dealers got fake delivery of Tractors Subsidy Scheme 2011-12 and made fake photo sessions demonstrating to have delivered the tractors which they did not deliver. On reporting of him, accused Shahzad Riaz succeeded to claim subsidy amount of purportedly delivered Tractors which tractors he sold within and out of Sindh province. It is argued by applicant that his name is not mentioned in FIR or interim challan, but his name has been included by the investigating officer of the case in the Final Challan Sheet without any evidence just to show his efficiency, although, he has no concerned with commission of crime; that no privity of contract was between the government and him; that complainant has not been able to show that how much tractors have been supplied to each of the applicants/growers nor any transaction in their account has been shown, as such complainant has failed to examined any grower to show that no tractor was delivered to the growers; hence, the present applicants is also entitled for bail.
21. As per prosecution story, the allegations against the accused Ghulam Shabbir Shahi are that he was the Member of Monitoring Committee constituted by DG Agriculture Engineering Hyderabad to monitor delivery of Tractors through Authorized Dealers to the growers in Sindh on the contrary he in collusion with accused Shahzad Riaz and his sub-dealers got fake delivery of Tractors Subsidy Scheme 2011-12 and made fake photo sessions demonstrating to have delivered the tractors which they did not deliver. On reporting of him, accused Shahzad Riaz succeeded to claim subsidy amount of purportedly delivered Tractors which tractors he sold within and out of Sindh province. It is argued by Mr. Irshan Ahmed Mughal, learned counsel for the applicant that the name of applicant is not mentioned in FIR or interim challan, but his name has been included by the investigating officer of the case in the Final Challan Sheet without any evidence just to show his efficiency, although, this applicant has no concerned with commission of crime; that no specific allegations has been leveled against the applicant, neither any documentary direct or indirect evidence against the applicant, which connects the applicant in this crime; that only allegation of abetment, which falls under Section 109 PPC, has been leveled against the applicant, which requires further inquiry. During the course of arguments, learned counsel also reiterated the same arguments, which he has mentioned in the synopsis furnished by him.
22. The allegations against the accused Qazi Masood Ahmed are that he was the Member of Monitoring Committee constituted by DG Agriculture Engineering Hyderabad to monitor delivery of Tractors through Authorized Dealers to the growers in Sindh on the contrary he in collusion with accused Shahzad Riaz and his sub-dealers got fake delivery of Tractors Subsidy Scheme 2011-12 and made fake photo sessions demonstrating to have delivered the tractors which they did not deliver. On reporting of him, accused Shahzad Riaz succeeded to claim subsidy amount of purportedly delivered Tractors which tractors he sold within and out of Sindh province. This applicant/accused omitted to perform his duties of monitoring as per instructions he was given on the contrary he facilitated accused Shahzad Riaz for fraud and cheating through forgery. Mr. Malik Naeem Iqbal, learned counsel for the applicant has reiterated the same arguments, which are mentioned in the preceding paragraph No.16 of this order and so also relied upon the synopsis furnished by him.
23. Conversely, Mr. Nasrullah Korai, learned Special Prosecutor, Anti-Corruption Establishment, Karachi, while opposing the bail applications of the applicants/accused, argued that the applicant/accused Shahzad Riaz is nominated in the FIR, whereas, the rest of the applicants/accused are nominated in the final challan with specific roles and they have caused heavy loss to the Government Exchequer in league with accused Shahzad Riaz due to which the latter succeeded in managing fake record which was recovered from his office by the investigating officer of the case; that prosecution witnesses have also implicated the accused in their statements recorded under Section 161, Cr.P.C. by the investigating officer of the case; that the offence punishable under Section 409 PPC falls within the prohibitory clause besides, the offences otherwise bailable turn non-bailable in special cases. In support of his contentions, learned Special Prosecutor has relied upon the cases of Rai Muhammad Khan v. NAB through Chairman and others reported as 2017 SCMR 1152, Qadan alias Qadir Bux and another reported as PLD 2015 Sindh 426, Suo Moto Action regarding Illegal Selling Out of the Auqaf Properties by the Chairman Evacuee Trust Property Board reported as PLD 2014 SC 100, Sher Muhammad Unar and others v. The State reported as PLD 2012 SC 179, Abdul Sattar Baig and others v. The State and others reported as 2014 P.Cr.L.J 983, Dost Muhammad v. The State reported as 2011 YLR 268, Nazir Ahmed v. Capital City Police Officer, Lahore and another reported as 2011 SCMR 484, Muhammad Zahoor and 3 others v. The State reported as 2011 SCMR 1893, Muhammad Jehangir Badar v. Chairman NAB and others reported as 2004 SCMR 1632, Muhammad Ashraf and others v. The State reported as 1995 SCMR 626. In the case of Rai Muhammad Khan as Supra, it has been held by the Hon’ble Supreme Court of Pakistan that “tendency corruption in every field had become a threatening danger to the State; that public money, allocated for social sector and economic well-bring of the poor people was consistently embezzled/misappropriated at a large scale and majority of the population was deprived of essential daily utilities, like pure drinking water, health care and education and that the Courts should apply anti-corruption laws rigidly at bail stage, once on facts a case was made out against the accused”; therefore, the applicants/accused are not entitled for bail.
24. Mr. Sagheer Abbasi, learned Assistant Prosecutor General, Sindh has adopted the arguments of Mr. Nasrullah Korai, learned Special Prosecutor, ACE, Karachi.
25. I have given my anxious thoughts to the contentions raised at the bar and have gone through the case papers so made available before me.
26. It reveals from the record that the alleged incident took place from 2009 to 2012, but surprisingly, FIR has been registered by the complainant Zahid Hussain Mirani, Inspector Directorate Anti-Corruption Establishment, Karachi on 04.05.2017, after the delay of about more than eight (8) years if it is taken from 2009, for which no satisfactory explanation has been furnished by the complainant for such delay, as such, on this ground, false implication of the applicants/accused at the hands of complainant with due deliberation and consultation could not be ruled out. During the course of arguments, I have specifically asked the question from learned Special Prosecutor, Anti-Corruption Establishment, Karachi, for such delay and why the complainant party remained mum for such inordinate delay, he has not replied satisfactory. It is an admitted position that case has been challaned and the applicants/accused are no more required for investigation. The whole case of the prosecution rest upon the documentary evidence, which are in possession of the prosecution and the prosecution witnesses shown in the challan sheet are almost belongs to Anti-Corruption Department, therefore, no question does arise for tampering of their evidence at the hands of applicants. Since the whole case of the prosecution rest upon the evidence of Anti-Corruption Police Officials, therefore, their evidence is required to be minutely scrutinized at the time of trial whether the offences as alleged in the FIR allegedly committed by the applicants/accused in a fashion as narrated by the complainant or otherwise. This aspect of the case requires further probe. There is nothing on record to show that the applicants/accused are previously convicted or have been arrested in a case of similar nature in past.
27. As per FIR and record, it appears that four persons including Shahzad Riaz have been nominated by names, but in the interim challan dated 18.05.2017, which was accepted without giving any reasons as required in Section 24 of the General Clauses Act by adding two accused namely Amir Rafiq and Ahsan, the trial Court again on 04.08.2017, received final challan, which was accepted on 09.08.2017, but surprisingly, in the said challan, the names of Agha Abdul Qadir, Director Agriculture Engineering, Hyderabad, Shakeel Ahmed, Director Agriculture Hyderabad and Attaur Rehman, Director Agriculture Sindh, were removed and they were not sent up for trial including 787 growers/beneficiaries and this fact also requires evidence at the time of trial whether the accused Shahzad Riaz has made embezzlement with the help of growers/beneficiaries and caused heavy loss to the Government Exchequer or otherwise. It also appears from the record that the Government of Sindh/prosecution agency filed Civil Suit No.1570 of 2017 before this Court on 12.06.2017 against the applicant Shahzad Riaz and others before accepting the final challan, in respect of alleged embezzlement of the amount (subject matter of the present FIR), which is still pending adjudication and so also after going through the various orders passed in the said suit, this Court declined to attach the bank accounts of applicant Shahzad Riaz. During the course of arguments, I have also asked the question to the learned Special Prosecutor, ACE, Karachi, whether such litigation is going on in between the parties, he replied in affirmative and submits that the criminal and civil litigations are on different patterns and on different parameters. No doubt the criminal and civil litigations could be proceeded independently, but in the instant case, in both the situations, evidence is required to prove a particular fact and as per record, criminal and civil litigations are at initial stage, therefore, at this stage, as far as alleged embezzlement of the applicants is concerned, this fact requires evidence as observed above, the whole case of the prosecution is rest upon the documentary evidence. Even otherwise, the allegation of embezzlement is based on words against words and this controversy requires evidence.
28. During the course of arguments, learned counsel for the applicants/accused have drawn the attention of this Court towards the fact that in this matter, complainant Inspector Zahid Hussain Mirani also conducted investigation, as such, according to them, being complainant and investigating officer of the case it cannot be excepted from him that as an investigating officer, he will collect any material which goes against the prosecution or gives any benefit to the accused, therefore, according to them, on this aspect of the case, they were of the view that the case of the applicants requires thoroughly scrutiny at the time of trial whether the evidence as collected by the investigating officer was genuine or otherwise. No doubt that no specific bar exists under the law against complainant, who is also investigating officer of the case, but as observed above, the whole case based upon documentary evidence, therefore, it is to be scrutinized by the trial Court at the time of trial whether the investigating officer of the case, who is also complainant of the case, has collected material against the applicants/accused independently or otherwise.
29. It is an admitted fact that co-accused namely Muhammad Ahsan, Sabir, Babu Aslam and Aamir Rafiq have already been granted post-arrest bail almost on similar facts and circumstances, therefore, by following the rule of consistency, these applicants/accused having almost same role are also entitled for same relief. The Hon’ble Supreme Court in the case of Muhammad Fazil alias Bodi v. The State reported as 1979 SCMR 09 has granted bail to the accused while observing as under:-
“without going into the merits of the case and the various rulings mentioned in the petition for leave to appeal requiring out consideration and interpretation. We think that the petitioner should be released on bail on principle of requirement of consistency in the same case and for similar reasons that co-accused to whom a role similar to that of the petitioner was attributed had been so released by another learned Judge of the same High Court. This petition is, accordingly, converted into an appeal and disposed of as such. The petitioner (Muhammad Fazil alias Bodi) is allowed bail in the sum of Rs.25,000/- with two sureties in the like amount to the satisfaction of the Assistant Commissioner, Kasur.”
In the case of Muhammad Daud and another v. The State and another reported in 2008 SCMR 173, the Hon’ble Supreme Court has observed as follows:-
“Co-accused in the case had already been admitted to bail. Accused were also allowed bail in view of the rule of consistency in the circumstances.”
30. It has vehemently been argued by learned Special Prosecutor, ACE, Karachi that the applicants/accused are involved in a case of serious and heinous in nature and they are involved in corrupt and corrupt practices and if they are granted bail, they would jumped the bail bond and absconded away. Thus, they are not entitled to any indulgence in the matter of bail. I have, however, not felt persuaded to agree with the learned Special Prosecutor, in this regard. Reverting to the contentions by the Special Prosecutor, it is suffice to say that in a case calling for further inquiry into the guilt of an accused person, bail is to be allowed to him or them as of right and such right cannot be refused to him or them merely on account of presumption of their absconsion.
31. It is pointed out by the learned counsel for the applicants/accused that the names of the applicants are not appearing in the FIR except the name of applicant/accused Shazhad Riaz, and their names have also not been included in the interim challan, but according to them, the complainant, who himself the investigating officer due to malafide intention, included their names in the final challan with the allegations that these applicants have facilitated to accused Shahzad Riaz for committing embezzlement and according to them, it is yet to be determined at the time of trial whether in fact on the basis of documents, these applicants have facilitated to accused Shahzad Riaz in the commission of the offence or otherwise. However, the case of the accused Shahzad Riaz also based upon the denial of the fact as alleged by the prosecution. It is pertinent to mention here that in this matter, since the growers/beneficiaries have neither been sent up for trial, nor they have been associated as witness, therefore, it is to be seen at the time of trial whether the applicants/accused have played any role in the commission of offence or otherwise. This aspect of the case also requires further probe.
32. From the perusal of case papers, it appears that case has been challaned under the above referred Sections of PPC, but on perusal of the punishments of the said sections, it appears that either the said sections are bailable or their punishments do not fall within the prohibitory of Section 497, Cr.P.C. except Section 5(2) of Act-II, 1947, and it is yet to be determined at the time of trial whether said Section is attracted in the present circumstances of the case or otherwise. No exceptional circumstances appear in this case to withhold the bail of the applicants/accused. I have perused the challan sheet with the able assistance of the parties’ counsel and say that in this matter, number of prosecution witnesses have been shown and still no charge has been framed and the matter is still at the initial stage, so also the proceeding is going on in trial Court with regard to the absconding accused and it is not known when the trial would commence and ended. Under the circumstances, there would be no purpose to serve out if the applicants are kept behind the bars for an indefinite period or the persons on interim pre-arrest bail are sent to jail.
33. In view of the above facts and circumstances of the case, I am of the opinion that the applicants/accused have made out a case of further inquiry. I, therefore, in view of what I have observed above, the applicants/accused, who are behind the bars, are admitted to post-arrest bail after their furnishing solvent surety in the sum of Rs.10,00,000/- (Rupees Ten Lacs only) each and P.R. bond in the like amount to the satisfaction of the trial Court, whereas, the applicants/accused, who are on interim pre-arrest bail, their bail applications stand confirmed on same terms and conditions with directions to the applicants to appear before the trial Court to face trial. In order to prevent any undue delay in the trial, the trial Court hearing this matter, is directed to proceed the matter expeditiously and decide the same as early as possible, however, preferably within the period of six (06) months after the receipt of this order and no unnecessary adjournment should be granted to either side. In case, if any of the applicant/accused misused the concession of bail during pendency of the case then trial Court would be competent to consider the cancellation of bail after due notice to him, but as per law. Office is directed to send a copy of this order to trial Court hearing the matter, for compliance which shall also submit monthly progress report to this Court through learned MIT-II.
34. Before parting with the order, I would like to make it clear that my findings is based only on tentative view of the material placed before me and shall not prejudice the case of either party at trial which will be decided by the trial Court on merits based on evidence before it.
All bail applications stand disposed of in the above terms.
JUDGE
Faizan A. Rathore/PA*