Naseeb Khan vs State

2013 P Cr. L J 960

[Peshawar]

Before Qaiser Rashid Khan, J

NASEEB KHAN---Petitioner

Versus

The STATE through Assistant Director FIA, D.I. Khan and another---Respondents Criminal Miscellaneous B. A. No. 240-D of 2012, decided on 7th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 406, 419 & 420---Prevention of Corruption Act (II of 1947), S. 5---Criminal breach of trust, cheating and illegal gratification---Bail, grant of--- Further inquiry---Monetary dispute---Complainant alleged that accused had illegally got encashed his cheque from bank---Validity---Statement of accused revealed that he had not denied the receipt of amount but there was some monetary dispute between accused and complainant---Complainant did not agitate the issue pertaining to the matter for over five years till he finally moved application to Federal Investigating Agency---All such factors led the matter to one of further inquiry---Bail was allowed in circumstances.

M. Ismail Alizai and Saifur Rehman for Petitioner.

Kamran Hayat Miankhel for the State.

M. Jehangir Awan and Muhammad Saleem Marwat for the Complainant.

Date of hearing: 7th November, 2012.

JUDGMENT

QAISER RASHID KHAN, J.---Having been refused the concession of bail from the court of learned Special Judge (Central) Peshawar vide order dated 15-10-2012, accused/petitioner Naseeb Khan has filed the instant petition for his release on bail in case F.I.R. No.3 of 2012 dated 5-1-2012 registered under sections 406/419/420, P.P.C. read with section 5(2) of P.C., Act at police station FIA, D.I. Khan.

2.Learned counsel for the petitioner argued that the petitioner is innocent and has been falsely charged in the case for patent mala fide reasons; that there is no independent evidence on record to connect the petitioner with the commission of offence, that the offences with which the petitioner is charged do not fall within the prohibitory clause of section 497, Cr.P.C. and that investigation in the case is complete and the petitioner is no more required for further investigation and thus he is entitled to the concession of bail.

3.Conversely, the learned standing counsel for the State assisted by learned counsel for the complainant/respondent No.2 vehemently opposed the bail application and argued that it is proved on record that the accused/petitioner managed to get the cheque favouring the complainant from the C&W department and succeeded in encashing the same, thus he is not entitled to the concession of bail.

4.Arguments heard and record perused.

5.As per record, on the application of complainant Aqal Din, respondent No.2, an inquiry was conducted by the FIA which transpired that a contract for the construction of Umar Adda to Pir Tangi Road was granted to the said Aqal Din and a cheque dated 24-12-2005 for an amount of Rs.13,77,000 was issued in his name and the accused/petitioner showing himself to be the partner of said Aqal Din, succeeded in getting the said cheque from C&W FATA, Tank and with the connivance of the Manager, National Bank of Pakistan, Saddam Shopping Centre Branch, Tank encashed the said cheque and embezzled the amount. During the course of investigation, the petitioner recorded his statement wherein he stated that he was partner with Aqal Din complainant and the disputed contract was granted to Aqal Din but due to enmity, the latter did not use to go to the site and the petitioner used to look after the contract work; that for the contract of Pir Tangi Road, three bills were received by Aqal Din whereas the fourth bill through a cheque for an amount of Rs.13,77,000 was received by him as Aqal Din had proceeded to Hajj; that as it was a crossed cheque, the petitioner deposited it in the account of Aqal Din who telephonically contacted the manager of the bank and asked him to deliver the amount of cheque to the petitioner which the petitioner received and out of the same, Rs.2,00,000 were paid to the inmates of the house of Aqal Din, 14% commission was paid to the C&W department and the remaining amount was kept by him as he had spent the same on the construction of road. From the said statement of the petitioner, it is evident that he has not denied the receipt of amount but it appears that there was some monetary dispute between the petitioner and the complainant Aqal Din. The same presumably was the reason that the complainant did not agitate the issue pertaining to the cheque dated 24-12-2005 for over five good years till he finally moved an application to the Deputy Director, F.I.A on 11-6-2011. All these factors lead the matter to one of further inquiry entitling the accused/petitioner to the concession of bail.

6.For the reasons mentioned above, this petition is accepted and the accused/petitioner Naseeb Khan is admitted to bail on furnishing bail bonds in the sum of Rs.5,00,000 (Rupees five lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate.

7.Any observations made in this order being tentative in nature should in no way prejudice the proceedings before the learned trial Court.

8.Above are the detailed reasons for my short order of even date.

MH/52/P Bail allowed.