1988 P Cr (PLP)

(i) That the, applicants were in fact the head No.1 and head No.2 of the Store and, therefore, they are responsible for the custody. (ii) That there was shortage of the store as found by the Committee comprising of eleven persons. (iii) That the applicants are not entitled to bail as their case falls under the prohibitive proviso of section 497, Cr.P.C. as the offences entail maximum sentence of life imprisonment.

3. Adverting to the first submission of the learned counsel for the applicants that under the working instructions of the Steel Mills the custody of the articles in the store was with the store keeper and not with the applicant, it may be observed that he has referred to a Circular No.STR/4 dated 16th February, 1978. In this behalf it will suffice to observe that the above Circular does not absolve applicant No.1 and applicant No.2 as the Manager and the Deputy Manager of the store. They were admittedly the Incharge and heads of the store. In any case the above point will have to be determined on the basis of the evidence to be recorded at the regular hearing.

4. As regards the second submission of Mr. Rafiq Khanzada that factually there was no shortage, it may be observed that Enquiry Committee comprising of eleven members on the basis of physical checking of the stock had found, inter alia, the shortage referred to in the above three F.I.Rs., which are also reflected in the stock cards. In any case the above point is also to be gone into in more detail at the regular hearing.

5. Reverting to the last submission of the learned counsel that the applicants' case is of further inquiry it may be observed that Mr. Rafiq Khanzada in support of the above submission has referred to the following cases; (i) Ch. Bashir v. The State PLD 1969 Pesh. 49 in which a learned Single Judge of the erstwhile High Court of West Pakistan at Peshawar has held that in spite of the fact that an offence may entail death or transportation for life the Court has still ample discretion to allow bail in such cases. It was also held that the Government servant accused of such like offences must be allowed bail unless reasonable grounds exist to believe that accused might abscond. (ii) Ijaz Akhtar v. The State 1978 SCMR

64. In the above case the facts were that the petitioner was charged under section 419/420/ 468/471/409, P.P.C. He was accused of embezzlement of large sum. The Hon'ble Supreme Court while granting bail observed that the fact that the amount allegedly embezzled by accused being large by itself would be no ground for refusal of bail. (iii) Abdul Hay-uz-Zafar v. The State 1983 P Cr. L J 2010 in which a learned Single Judge of the Lahore High Court has held that the mere fact that the accused had allegedly misappropriated a sum of Rs.1,83,800.20 would not be sufficient to refuse to bail. 2 (iv) Mir Akhtar Khan Khattak v. The State PLD 1982 Pesh.

128. In the above case a learned Single judge of the Peshawar High Court has held that the mere fact that the amount involved in embezzlement is sufficiently large by itself is no ground for refusing bail particularly when the investigation was completed and the commencement of the trial likely to take considerable time. (v) Muhammad Tariq Khan alias Tariq Khan and others v. The State 1985 P Cr- L J 1324, in which a learned Single Judge of the Baluchistan High Court after perusing the police statements of the witnesses concluded that there was nothing against the applicant which may constitute an offence under section 409, P.P.C. and admitted the applicant to bail. (vi) Unreported order dated 15-12-1987 passed by a learned Single Judge of this Court in Criminal Bail No.1331/1987 Roshan Ali Chajro v. The State, in which a learned Judge of this Court was pleased to admit the applicant to bail, who was facing trial under sections 409/ 420/468/471/477-A/34, P.P.C. read with section 5(2) of Act, 1947 on the ground that the trial of the case would take quite sometime. Reliance was placed on the above Peshawar case of 1969.

6. It is an admitted position that the applicants are accused of offences which entail maximum sentence of life imprisonment and, therefore, the case falls under prohibition proviso to sub-section (1) of section 497 , Cr.P.C. which provides that "he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or which requires or imprisonment for life or imprisonment for ten years". The only question which requires consideration is that, whether there appear reasonable grounds for believing that the applicants have been guilty of the offence charged with. Admittedly the shortage of the aforesaid items has been detected from store, of which the applicants were the Manager and the Deputy Manager, the approximate value of which runs into more than Rs.3 million. There are statements of the witnesses on record to support the charge of the shortage. It is true that in some of the cases, the Courts had admitted the accused to bail even in the cases involving embezzlement or misappropriation of the Government property/funds which, inter alia, include the above cases cited by Mr. Rafiq Khanzada. However, I may point out that with the passage of time, the offence in question has now become common. The public properties/ funds are being embezzled/ misappropriated as a matter of course, of which fact the Court can take judicial notice. In my view, one of the determining acts to discourage the commission of the above offence is to be strict in grant of bail. I am, therefore, not inclined to exercise discretion in favour of the applicants at this stage as there is material on record to support the charge and the offence is non-bailable which carries maximum sentence of life imprisonment.

7. I would, therefore, dismiss the above bail applications but would observe that if the above cases are not proceeded with before the learned trial Court within a period of two months, the applicants may repeat their bail applications. These are the reasons in pursuance of short order of even date. S.A./S-193/ K ??????????????????????????????????????????????????????????????????????????????????? Bail refused .