PLJ 2024 Cr.C. (Note) 100
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
MUHAMMAD KHIZAR HAYAT and another--Petitioners
versus
STATE and another--Respondents
Crl. Misc. No. 4646-B of 2023, decided on 25.10.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 161, 409, 419, 420, 467, 468 & 471--Prevention of Corruption Act, (II of 1947), S. 5--Pre-arrest bail, grant of--Allegations of--Forged computerized payment receipts-- The Investigating Officer of case, present before Court, submits that during course of investigation, it was determined that a loss of Rs. 10,38,589/- had been caused by petitioners with regard to deposit of various Government fees and taxes and said taxes and fees had not been deposited but forged Computerized Payment Receipts and Form L.A.1 (T.R.6)-- The Investigating Officer of case, as mentioned above, has already collected all relevant documentary evidence as well as recorded all relevant statements during course of investigation and has also successfully retrieved loss of Government money during investigation of case--Presently, Investigating Officer of case, submits that as loss caused by petitioners has been recovered, therefore, nothing more stands to be recovered from them during investigation of case--Petitioner No. 2 is a woman and law does recognize some benefit on ground of her gender also--Whole prosecution case is based on documentary evidence and already taken into possession--The version of petitioners have already been verified by Investigating Officer--The assertion of counsel for petitioners that petitioners have been involved in occurrence due to malafide and malicious intent, is an assertion, which cannot be said to be without basis or foundation--In view of peculiar circumstances of case, sending petitioners, who are husband and wife inter-se, behind bars at this stage would cause irreparable loss to their reputation and would serve no useful purpose--Petition allowed.
[Para 4] A, B, C & D
PLD 2017 SC 730.
Syed Jaffar Tayyar Bukhari, Advocate for Petitioners.
Ch. Muhammad Akbar, Additional Prosecutor General with Muhammad Saleem, S.I., Anti-Corruption Establishment, Multan.
Date of hearing: 25.10.2023.
Order
Through this petition under Section 498, Cr.P.C. the petitioners, namely Muhammad Khizar Hayat and Mst. Sumaira Raheem, seeks pre-arrest bail in case FIR No. 16 of 2020 dated 19.12.2020, registered in respect of offences under Sections 161, 409, 419, 420, 467, 468, 471, PPC and under Section 5 of the Prevention of Corruption Act (Act No. II) of 1947, at the Police Station Anti-Corruption Establishment, District Multan.
2. The allegations against the petitioners, namely Muhammad Khizar Hayat and Mst. Sumaira Raheem, called from the evidentiary material produced before the Court, are that they in connivance with Abu Bakar, the former Land Record Officer, prepared and appended with the record forged computerized payment receipts and Form L.A.1 (T.R.6), Challan of Cash Paid Into Bank/Treasury, resulting in loss of Rs. 10,38,589/- to the government exchequer.
3. I have heard learned counsel for the petitioners, the learned Additional Prosecutor General and with their able assistance perused the record.
4. This is a pre-arrest bail and only a tentative assessment of the evidentiary material produced before the Court can be made at this stage. The Investigating Officer of the case, present before the Court, submits that during the course of the investigation, it was determined that a loss of Rs. 10,38,589/- had been caused by the petitioners with regard to the deposit of various Government fees and taxes and the said taxes and fees had not been deposited but forged Computerized Payment Receipts and Form L.A.1 (T.R.6), Challan of Cash Paid Into Bank/Treasury were submitted and retained by the petitioners and their co-accused, resulting in the loss, however, as the said Government Taxes and Fee were deposited with regard to the sanction of the mutations, therefore, the buyers with regard to whose properties, the mutations had been entered have already deposited the whole amount of Rs. 10,38,589/- and presently the loss caused by the petitioners stands recovered. Another aspect of the case is that a similar allegation has been levelled against Tauseef Iqbal, Amjad Noor, Muhammad Sibtain, Shahid Hussain and Mian Sadaqat Bodla all Service Center Officials, however, against the said co-accused of the Petitioner No. 2 namely Mst. Sumaira Raheem, the judicial action has not been approved rather only a direction has been issued that they be proceeded against under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 as commission of crime could not be detected with regard to them. Presently, the evidentiary material against the Petitioner No. 2 namely Mst. Sumaira Raheem is similar to that which was available and Tauseef Iqbal, Amjad Noor, Muhammad Sibtain, Shahid Hussain and Mian Sadaqat Bodla who were all posted as Service Center Officials at the relevant time as well as the Petitioner No. 2 namely Mst. Sumaira Raheem, therefore, when it has been got determined that Tauseef Iqbal, Amjad Noor, Muhammad Sibtain, Shahid Hussain and Mian Sadaqat Bodla, the co-accused of the petitioners, were not involved in any crime, prima facie, a possibility does exist that the Petitioner No. 2 namely Mst. Sumaira Raheem was also herself the victim of fraud played upon her by submission of forged Computerized Payment Receipts and Form L.A.1 (T.R.6), Challan of Cash Paid Into Bank/Treasury and the question as to whether the Petitioner No. 2 namely Mst. Sumaira Raheem forged the said documents, is the question which needs further determination by the learned trial Court after the recording of evidence, however, presently no such determination can be made. There is also an allegation against the Petitioner No. 2 namely Mst. Sumaira Raheem that she was the owner of the properties for the buying of which she had no explanation nor any source and her claim that the said properties were given to her in lieu of Dower, was found incorrect as she was married on 12.07.2020. With regard to this allegation, it is observed that the source by which the said properties were purchased and were transferred in the name of the Petitioner No. 2 namely Mst. Sumaira Raheem is to be discovered by the prosecuting agency and it is the requirement of the law that the prosecuting agency first proves that the said properties had been purchased through ill-gotten money and then the onus comes to the Petitioner No. 2 namely Mst. Sumaira Raheem to explain her sources. Presently, the prosecuting agency has not collected any evidence that the properties mentioned in the F.I.R in the name of the Petitioner No. 2 namely Mst. Sumaira Raheem, had been purchased by way of ill-gotten money and only the failure of the Petitioner No. 2 namely Mst. Sumaira Raheem to explain their possession does not fulfil the requirements of the law for proving the offences being investigated against her. With regard to the Petitioner No. 1 namely Muhammad Khizar Hayat, the allegation against him is that he was the Deed Writer who acted in connivance with his co-accused, however, it has not been explained as to in what manner and to what extent, the Petitioner No. 1 namely Muhammad Khizar Hayat, got prepared any forged documents by way of which the Government was made to suffer loss. That determination shall also be made by the learned trial Court. The Investigating Officer of the case, as mentioned above, has already collected all the relevant documentary evidence as well as recorded all the relevant statements during the course of investigation and has also successfully retrieved the loss of Government money during the investigation of the case. Presently, the Investigating Officer of the case, submits that as the loss caused by the petitioners has been recovered, therefore, nothing more stands to be recovered from them during the investigation of the case. It is also a fact that the Petitioner No. 2 namely Mst. Sumaira Raheem is a woman and the law does recognize some benefit on the ground of her gender also. It is also a fact that the whole prosecution case is based on documentary evidence and already taken into possession. The version of the petitioners have already been verified by the Investigating Officer. The assertion of the learned counsel for the petitioners that the petitioners have been involved in the occurrence due to malafide and malicious intent, is an assertion, which cannot be said to be without basis or foundation. In view of the peculiar circumstances of the case, sending the petitioners, who are husband and wife inter-se, behind the bars at this stage would cause irreparable loss to their reputation and would serve no useful purpose. Reliance is placed on the case of “Khalil Ahmad Soomro and others v. The State” (PLD 2017 SC 730), wherein the following principle has been enunciated:
“Although for grant of pre-arrest bail one of the pre conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/ materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events hints to that effect are available, the same would validly constitute the element of mala fide.”
5. In view of the above discussion, this petition is allowed and ad-interim pre-arrest bail already granted to the petitioners, by this Court, vide order dated 26.06.2023, is confirmed subject to their furnishing fresh bail bonds in the sum of Rs. 200,000/- (Rupees two hundred thousand only) each with two sureties each, each in the like amount, to the satisfaction of learned trial Court.
6. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit.
(A.A.K.) Petition allowed
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