ASHIQ HUSSAIN Versus State

SYED ARSHAD HUSSAIN SHAH, C.J.--- This Cr. Petition for Leave to Appeal arises out of impugned Order dated 24.07.2020 passed by the learned Gilgit-Baltistan Chief Court in Cr. Misc. No. 140/2020 whereby, the Criminal Miscellaneous filed by the present petitioner/Accused for grant of post arrest bail was dismissed.

2. Facts and grounds in brief involved in the case in hand are that FIA Police Station No. 14 Gilgit had lodged FIR No. 13/2020 against the present petitioner/accused Ashiq Hussain. It was alleged in the FIR that the present petitioner/accused while performing his duties as Incharge of Warehouse, Utility Stores Corporation Skardu in the year 2014, embezzled huge amount of said utility store. The FIA after inquiry, found him involved in the alleged offence. After registration of FIR, present petitioner was arrested. Present petitioner filed an application under section 497, Cr.P.C. for grant of post arrest bail before the learned Sessions Judge, Skardu which dismissed vide order dated 06.07.2020. This Order of the learned Sessions Judge was assailed before the learned Chief Court by means of Cr. Misc. No. 140/2020, which was also dismissed vide Order dated 24.7.2020, hence the present Cr. Petition for leave to appeal before this Court against the impugned Order.

3. Learned counsel for petitioner argued that petitioner had nothing to do with the alleged offence as he has not committed any act of misappropriation or negligence, rather the edible goods/items were perished owing to non-availability of sufficient space for storage of the commodities and that with respect to arrangement for storage of commodities, present petitioner/accused time and again approached to the concerned authorities with number of applications, but no step was taken in that regard, hence it was not the fault on part of present petitioner. It was next argued that despite of writing number of applications to high --ups of Utility Stores Corporation, no action was taken, thus the commodities were left in open space which resulted in their perishing/destruction during rain/snowfall , while these essential facts and grounds were not taken into consideration by the learned Chief Court, hence the impugned judgment was not sustainable in the eyes of law and was liable to dismissed on this score alone. Learned counsel for petitioner/accused next argued that the case of prosecution was a result of afterthought because the present petitioner had already filed a civil suit against the complainant and that after six years, the prosecution tended to lodge FIR with mala fide intentions, thus the case of present was case of further inquiry and present petitioner was entitled to concession of post arrest bail. Concluding his submissions, learned counsel for present petitioner argued that since the impugned judgment passed by the learned Chief Court and the learned Sessions Judge were based on non-appreciation of material facts and grounds involved in the case, hence the same may please be set aside by granting post arrest bail in favour of present petitioner. On the other hand, Mr. Shabbir Hussain Shigri, Deputy Director Law, FIA along with Syed Ilyas, Deputy Director, Utility Stores Corporation Gilgit-Baltistan opposed submissions of learned counsel for present petitioner and defense of impugned Orders of the learned Courts below argued that the Orders passed by the learned Courts below were in accordance with facts and law, hence prayed that the same may please be maintained.

4. I have heard arguments advanced by both the sides and with their able assistance, have also gone through the record as well as impugned judgments/ orders of the learned Courts below.

5. It is noticed from the record that there is no explanation in either judgments of the learned Courts below that what were the compelling reasons for FIA and Utility Corporation which took about 6 years to complete the inquiry. The present petitioner was alleged to have committed act of embezzlement/ destruction of huge quantity goods during his posting as Incharge Warehouse in the year 2014, while FIR has been lodged in 2020 after about 6 years. In addition to this, there was no explanation regarding submission of applications by present petitioner for provision of space for storage of goods wherein he had apprehended destruction of edible goods in case of leaving them in open space owing to lack of proper storage arrangements. From record, it is noted that 4 applications were written to Regional Manager USC Skardu by present petitioner on different dates regarding the issue. Upon receipt of repeated applications, Regional Manager, USC, Skardu should have visited the said store to find out as to whether additional space for storage of edible items/goods was actually required or not. In case if he finds that the said store required additional space was required, he was to inform the high authorities of Utility Stores Corporation in that regard. In case of submissions of applicant as baseless so as to avoid the responsibility of destruction of edible items/goods, appropriate action under law was required to be taken against the present petitioner. However, there is nothing on record to substantiate the fact that the said Regional Manager, USC Skardu ever visited the said store to dig out the factual position or submitted any visit report. These lapses on the part of authorities of Utility Stores Corporation and registration of FIR after 6 years create doubt, which entitled the present petitioner for grant of post arrest bail.

6. In view of above position, the instant criminal petition for leave to appeal is converted into an appeal and the same is allowed. The impugned judgment dated 23.07.2020 passed by the learned Chief Court in Criminal Misc. No. 140/ 2020 stands set aside. Vide short dated 07.04.2021, present petitioner/accused has already been ordered to be released on bail, which is reproduced as under:

"Case heard and record perused. For the reasons to be recorded later, we convert the above Cr.P.L.A. No. 28/2020 into an appeal and the same allowed. In consequence whereof, the petitioner is ordered to be released on bail subject his furnishing of bail bond to the tune of Rs. 01 Million with one surety in the like amount to the satisfaction of the learned Trial Court".

7. The above assessments being tentative in nature for grant of post arrest bail shall not affect the trial of case before the concerned Trial Court.

SA/49/GB Appeal allowed.