FAUJI FOUNDATION Versus BAKHTIAR AHMED SYED

ZIA MAHMOOD MIRZA, J.--- This appeal by leave of this Court, is directed against an order of a learned Division Bench of Lahore High Court dated 23-2-1994 dismissing the appellant's application for cancellation of bail granted to the accused/respondent by Special Judge (Central), Rawalpindi in a case under sections 409/419/420/467/468/471/201/109, P.P.C. read with section 5 (2) of the Prevention of Corruption Act, 1947.

2. Facts necessary for the disposal of this appeal briefly are that a case under the aforementioned sections was registered at Police Station Civil Lines, Rawalpindi vide F.I.R. No. 285 lodged by Brig. Sultan Mahmood, Secretary, Board of Directors, Fauji Foundation, Rawalpindi on the allegations that Zakir Hussain Zakria, an Accounts Assistant in Fauji Foundation had dishonestly and fraudulently withdrawn huge amounts from Account No. PLS- 11976 in Habib Bank Limited, Lal Kurti Branch, Rawalpindi which was in the name of Fauji Foundation Project, Employees Provident Fund. It was further alleged in the F.I.R. that Akhtar Hussain and Nazar Hussain, brothers of Zakir Hussain, Abbas Ali and Sher Muhammad etc. were also involved in the commission of offences.

3. It appears that during the investigation of the case, Bakhtiar Ahmed respondent herein was also found involved in the case and was arrested on 26-7-1992 after his application for pre-arrest bail was rejected by the Special Court (Offences in Respect of Banks), Lahore. He then moved an application for post-arrest bail before the Special Judge, Anti-Corruption, Rawalpindi which was taken up by Sessions Judge, Rawalpindi who allowed him interim bail on 4-8-1992 on the ground that he was a patient of serious heart ailment, till such time his bail was confirmed by a competent Court. The interim bail was later confirmed by Special Judge (Central), Rawalpindi by his order dated 27-9-1992 on the ground, inter alia, that during the investigation nothing was brought on record to connect him with the crime and he was declared innocent by the Investigating Officer and placed in column No.2 of the challan. In fact, the bail application of the respondent was not opposed by the P.I. who made a statement in writing that the respondent was guilty of only gross negligence.

4. Fauji Foundation the petitioner herein challenged the order of the Special Judge (Central), granted bail to respondent in the High Court and raised the question of jurisdiction of the Courts below to allow bail to the respondent. It was contended before the High Court that the offences committed by the respondent were scheduled offences which were triable exclusively by the Special Court (Offences in Respect of Banks). Neither the Sessions Judge nor the Special Judge (Central) had the jurisdiction in the matter. Learned Judges of the High Court, as stated above, declined to interfere with the orders of the Sessions Judge/Special Judge granting bail to the respondent vide order dated 23-2-1994 impugned in the present appeal. The learned Judges observed "Director, Law FIA accompanied by the Investigation Officers having been sent over during the course of these proceedings categorically stated that the prosecution has no incriminating material available against the petitioner for the offences charged".

5. The complainant then brought the matter before this Court contending that neither Sessions Judge nor Special Judge (Central), Rawalpindi had the jurisdiction to grant bail in the scheduled offences which were triable exclusively by Special Court (Offences in Respect of Banks). Leave was granted to examine this question.

6. We have heard the learned counsel for the petitioner/complainant as also the counsel appearing for the accused-respondent and the learned Deputy Attorney-General. Learned counsel for the complainant apart from challenging the jurisdiction of the Sessions Judge/Special Judge (Central) to grant bail in the offences of which the respondent was charged' also sought to assail the bail granting order on merits by contending that the respondent was a Chief Accountant/General Manager (Finance) in the complainant organization and that it was during his tenure that fraud was perpetrated from May, 1984 to July 1990. It was submitted that during this period, 955 cheques were issued out of which, amount of 353 cheques was misappropriated and that the respondent had also been signing the requisition slips and the cash books. According to the learned counsel, the respondent was privy to the fraud committed by his co -accused. Learned counsel has, however, not denied that the Director Law, F.I.A. had made a statement before the Special Judge (Central) as also in the High Court that there was no evidence against the respondent to challan him in the case. His name was, therefore, placed in column No.2. In the circumstances, impugned order of the High Court declining to cancel the bail of the respondent is not open to any exception on merits. As regards the question of Jurisdiction, it has been admitted before us that no official of the Bank had been challaned in the case. It has also been stated at the Bir that the challan has been submitted in the Court of Special Judge (Central), Rawadpindi where it is pending for the last many years and no evidence has so far been recorded. On our query, the learned counsel for the petitioner has quite fairly admitted that the complainant has not approached any higher authority with written application making a grievance that the challan should not have been submitted in the Court of Special Judge (Central) or that the case should be transferred to the Special Court (Offences in Respect of Banks). In these circumstances, we do not feel inclined to interfere with the impugned order of the High Court, even on the question of jurisdiction. Petitioner, if so advised, may move the higher authorities on the administrative side or may take an objection before the Special Judge (Central) questioning his jurisdiction who will, of courage, examine and decide the matter in accordance with law.

7. In view of what has been said above, the appeal is dismissed with the IC observations aforementioned.

N.H.Q./F-375/S Appeal dismissed.