DAYAR KHAN vs THE STATE
This is a criminal petition for post-arrest bail arising from F.I.R. No. 8 dated 7-10-2000 registered at Police Station A.C.E., Swabi, under sections 419, 420, 468, and 471 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act. The core legal question was whether the petitioners, who were public servants allegedly responsible for financial losses to the government based on an audit report regarding export and immovable property taxes, were entitled to bail when the offences did not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure and they were no longer required for investigation. The Peshawar High Court held that since the offences carried a punishment of up to 7 years (thus falling outside the restrictive limb of section 497(1)), the petitioners were no longer needed for investigation, co-accused similarly situated were exonerated, and the applicability of certain instructions/policies to the execution of deeds required further inquiry, the petitioners had made out a case for bail. The court laid down the principle that bail should be granted where an offence does not fall within the prohibitory clause of section 497(1) of the Code of Criminal Procedure, the accused are not required for further investigation, and their case warrants further inquiry.
- Whether an accused charged with offences not falling within the prohibitory limb of section 497(1) of the Code of Criminal Procedure is entitled to bail when no longer required for investigation?
- Do instructions or public policy letters issued subsequent to the execution of agreement deeds have a retrospective bearing on those deeds?
- Does signing a contract as marginal witnesses under the Local Council Contract Rules, 1980, where involvement for monetary benefit requires further inquiry, justify the grant of post-arrest bail?
- Section 419, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 497(1), Code of Criminal Procedure 1898
' Dayar Khan, Chief Officer, Syed Farman Ali Shah, Taxation Officer and Farmaish Gul, Taxation Superintendent of District Council, Swabi were arrayed as accused in case F.I.R. No,8, dated 7-10- 2000 Police Station A.C.E., Swabi for committing an offence punishable under sections.
419/420/468/471, P.P.C. Read with section 5(2) of the P.C. Act. All the three accused applied for the concession of bail to the Special Judge, Anti-Corruption N.-W.F.P. Which was refused to them vide his order, dated 14-2-2001. Hence the instant three separate petitions for the said purpose which are disposed of by this common order having been arisen from the same F.I.R.
2. The prosecution case in brief is that the accused petitioners were posted as Chief Officer, Taxation Officer and Taxation Superintendent respectively during financial years 1995-96 and 1996- 97 and they in furtherance of their common intention and to derive illegal benefit caused loss to the Government in the execution of agreement-deed for export tax in the year 1996-97 and immovable property tax for the year 1995-96 extending undue benefit to the contractor Sahib Gul (now dead) and Talib Hussain respectively.
3. In the audit report the three petitioners alongwith others were found responsible for causing losses to the tune of Rs,1,06,20,663. On the basis of audit report the three petitioners were charged in the F.I.R. Noted above.
4. I heard the learned counsel for the petitioners and learned counsel for State. Also perused the record with assistance of the learned counsel for parties.
5. Without going into deep merits of the case suffice it to say that the Letter No,A.11(LCB)9596, dated 3-6-1996 regarding instructions/public policy was issued latter than the execution of two deeds which were executed on 30-5-1996 and 6-6-1995 has got no bearing on the agreement deeds executed prior than the circulation of aforesaid instructions/policy. The Auditor also held responsible one Liaq Khan, Ex-Secretary, Local Council Board but he was subsequently exonerated by the Inquiry Officer Assistant Director Legal-I, A.C.E., Peshawar vide his report, dated 12-2-2000. It is undisputed fact that the civil suit filed by contractor wherein a decree in sum of Rs,70,22,359 was passed and Dayar Khan petitioner filed an appeal in this Court in his capacity as Chief Officer and the operation of the decree was also got suspended but subsequently, Mr. Shah Hussain, Administrator District Council, Swabi moved a summary to the Secretary, Local Council Board for withdrawal of the appeal and making an amicable settlement with the contractor which was approved by Mr. Liaq Khan, Secretary. Local Council Board but both the two highups of the department were not only exonerated for departmental action, but also not arrayed as accused in the instant case. It is argued at the bar that under the Local Council Contract Rules, 1980 the Chairman of Local Council is authorized to enter into a contract and the petitioners have signed the contract as marginal witnesses and their involvement in the case that they have taken monetary benefit from the contractors for undue favour requires further inquiry. It is also contended that the offence for which the petitioners are charged does not fall within the restrictive limb of section 497(1), Cr.P.C. Being punishable up to 7 years and the petitioners are no more required for investigation. The petitioners have long-standing service in the Local Government Department and there is no apprehension of their abscondence. In identical circumstances the High Court and august Supreme Court of Pakistan have granted the concession of bail and in this respect the following case-law was produced at the Bar:---
(1) Saeed Ahmad v. State 1996 SCM R 1132, (2) Ijaz Mahmood v. State 1980 PCr.LJ 26, (3) Babar Hussain v. Muhammad Rashid Khan 2000 PCr.LJ 980, (4) Badrey and 3 others v. The State 2000 PCr.LJ 1914, (5) Afsar Ali v. State 2000 PCr.LJ 1903 and (6) Muhammad Shabbir v. State 1986 PCr.LJ 1097.
6. The learned State Counsel frankly conceded at the Bar that notwithstanding the fact that petitioners are charged for causing loss to the public exchequer for a huge amount the petitioners are no more required for investigation and the case against accused-petitioners does not fall under the restriction envisaged in section 497(1), Cr.P.C.
7. In view of the discussion made above I allow the petitioners to be released from custody provided each of them furnishes a bail bond in the sum of Rs,10,00,000 (Rupees ten lacs) with four sureties each in the like amount to the satisfaction of the trial Court. The trial Court shall see that the sureties are local and men of means.