AMANULLAH vs THE STATE and another

'MUHAMMAD ALAM KHAN, J.---Amanullah son of Faramosh resident of Mingora District Swat, have been unsuccessful in obtaining bail from the Court of Senior Special Judge Anti-Corruption N.- W.F.P. Peshawar vide order dated 28-5-2008, as he is involved in case F.I.R. No,3 dated 5-5-2008 of P.S.ACE Swat under sections 409/468/471, P.P.C. Read with section 5 (2) of the Prevention of Corruption Act, has come to this Court securing his release on bail.

2. Briefly narrated the facts of the case are that on 19-4-2008 Principal Government Degree College Kabal District Swat wrote the following letter vide No,371 to the S.H.O. P.S. Kabal for lodging F. I . R: "Your attention is invited towards the involvement of Mr. Amanullah S/Clerk of this College in mass embezzlement/misappropriation (1) A draft of Rs,400,000 in the name of Pak German Wood Working Timergara for the supply of furniture issued on 5-7-2007 was not received by the said firm, when the same Clerk was asked, he confessed that he has used the money for personal purposes(Xerox copy of the draft) is attached. (2) Cheques Nos. 686607, 686641, 686642, 686643 worth Rs,22996, 40000, 15000 and 250000 respectively cashed from private fund (N.B.P. Kabal ) by fake signatures, other will be detected after analyzing the Bank record. (3) Other misappropriation which is in lacs, will be sorted out from the college record."

3. On the basis of the above letter/ complaint a proper case under the aforementioned sections of law was registered against Amanullah accused-petitioner.

4. Mr. Aziz-ur-Rehman, Advocate learned counsel for the petitioner contended that previously F.I.R.

No,106 dated 19-4-2008 had been registered by the local police of P.S. Kabal under section 409, P.P.C. Read with section 5(2) Prevention of Corruption Act against the petitioner on the written application of Principal Government Degree College Kabal District Swat but the same was discharged vide order of the District Police Officer Swat through letter No, 4110 dated 22-4-2008, so the registration of second F.I.R. No,3 dated 5-5-2008 by the Anti Corruption Establishment was not warranted under the law.

5. It was argued that under Rule 3 of the Anti-Corruption Establishment Rules, 1999 it was incumbent upon the Anti-Corruption police to have conducted an open inquiry and the same having not been done the arrest and detention of the accused-petitioner was not warranted under the laws. It was also argued that during the intervening period when the accused was discharged from F.I.R. No,106 dated 22-4-2008 by the local police and the registration of second F.I.R. No, 3 dated 5-5-2008 the detention of the accused-petitioner was not in accordance with law and was illegal.

6. It was also submitted that the matter pertains to record the accounts and the presence of the accused is no longer required for investigation. Reliance was placed on the case of "Mirza Muhammad Zulfiqar and othes v. The State" reported in (2000 SCM R 1072) and on the case of "Abdul Hay-u-Zafar v. The State" (1983 PCr.LJ 2010), in the case of "Brig: (Rtd.) Sahibdad Khan v. The State and 2 others" (1977 PCr.LJ 676) and "Haji Nooruddin v. The State" (1977 PCr.LJ 498). The learned counsel prayed that the petitioner is entitled to the concession of bail.

7. On the other hand Mr. F. M. Sabir, Advocate learned counsel appearing for the State vehemently opposed the bail application on the ground that the accused-petitioner being the Clerk of Government Degree College Kabal was the repository of trust which was violated and huge amount of Rs,17 lacs, through various cheques was embezzled from the College fund regarding which FCL report with respect to the various cheques is in positive. It was also submitted that besides the overwhelming evidence available against the accused-petitioner he had executed an agreement dated 16-4-2008 in which he has admitted his liability of the said embezzlement and thus, he is not entitled to the concession of bail. It was also submitted that the earlier F.I.R. Had been registered by the local police and the accused being a Government servant, the matter was referred to Anti-Corruption Establishment.

8. I have given my anxious consideration to the facts of the case and have gone through the record of the case also.

9. Perusal of the record reveals that the accused/petitioner is directly charged for embezzlement of huge amount from the College fund. The Forensic Science Laboratory report dated 13-6-2008 available on the file regarding the disputed cheques is in positive, besides also, an agreement deed was executed by the accused petitioner himself admitting his liability with respect to the embezzlement. The case law cited by learned counsel for the petitioner had got no relevance with the facts of the instant case. The offence with which the petitioner is charged, comes within the prohibitory clause of section 497, Cr.P.C. Furthermore there is evidence on the record to connect the accused/petitioner with the Commission of the offence and thus, in view of the Dicta laid down in the case "Fateh Muhammad v. The State" (2003 PCr.LJ 1115) and Tanveer Ahmad Haral v. The State"

(2002 SCM R 1327), the accused/petitioner is not entitled to the concession of bail.

10. In view of the facts and circumstances of the case narrated above, there is no force in the instant bail petition which is dismissed.

'The above are the reasons for my short order dated 18-8-2008.