2007 PLP 484 (YLR)

MUHAMMAD AKHTAR SHABBIR, J.

The petitioner seeks post-arrest bail in a case F.I.R. No.406 of 2006 dated 20-7-2006 registered under section 408, P.P.C. at Police Station New Town, District Rawalpindi.

2. The allegation against the petitioner is that he was an employee of the complainant's firm running the business of Overseas Employment Promotion in the name and style of Al-Siddique Corporation Private Limited. The petitioner has been appointed as the attorney of the firm to negotiate with foreign employment outside the limits of Pakistan and sign contract, agreement with such employment on behalf of Al-Siddique Corporation Ltd. In consequence thereof to secure the manpower demand on the terms not less attractive than the prescribed by the GOP. The petitioner was sent to 'Malaysia' for the said purpose and all expenses of his boarding and lodging and payment for his family in Pakistan as well were borne by the Company to the tune of Rs.1,20,

200. During his stay in Malaysia, he informed the Company that he entered into contract with four employees and they have demand of Pakistan manpower in number. In this process he served some documents and these were sent to the undersigned which given the impression that the negotiation Ponson by Engineering SDN BHD Company No.692810W, a sum of RM 3,11,677.00 to be entrusted to the petitioner by the said company from time to time. The petitioner did not pay a single penny to any of the employers therein Malaysia. The petitioner from the very beginning was dishonest and intimated bogus information to the complainant for extortion of money.

3. The post-arrest bail of the petitioner was declined by the learned Magistrate Ist Class, Rawalpindi vide order dated 18-9-2006 as well as by the learned Additional Sessions Judge, Rawalpindi, vide his order dated 30-9-2006.

4. The learned counsel for the petitioner contended that the offence under section 408, P.P.C. does not fall within the prohibitory clause of section 497, Cr.P.C. Further contended that the case against the petitioner entirely dependents upon the documentary evidence, which is in possession of the prosecution and there is no possibility of tampering of the same. Further contended that no criminal liability is constituted against the petitioner. It is only a civil liability and to resolve the controversy the petitioner has been malafidly involved in the case. He further contended that the matter in hand is involving matter of accounts. He further contended that there is no evidence on the police file establishing the guilt of the accused/petitioner. Further contended that the "embezzlement" of quite large amount is not a ground to decline the concession of bail to the petitioner. Further that the benefit of doubt if any would also go to the petitioner. The petitioner is behind the bars and no useful purpose would be served for detaining the petitioner indefinitely. Further contended that the petitioner's wife is a sixty years old lady and is suffering from extensive disease of Cancer and no male member is available to attend her in the family. He has drawn the attention to a FAX letter from Pahic Kuala Lampur verifying that no company namely Ponson by Engineering SND BHD is functioning in Malaysia.

5. On the other hand, learned counsel for the complainant vehemently opposed the grant of bail to the petitioner contending that the petitioner is admittedly attorney of the complainant and in this context he has referred a document of attorney-ship executed in favour of the present petitioner. Further contended that the petitioner has misappropriated the huge amount and is not entitled for the concession of bail. He placed his reliance on the case of Lal Hussain v. Muhammad Akbar and 2 others (1995 PCr.LJ 946). Further contended that mere the fact that the offence not falling within the prohibitory clause of section 497(1), Cr.P.C. does not mean that it has become a. bailable offence and the discretion still remains with the Court to consider whether a person accused of an offence does or does not deserve the grant of bail. He placed his reliance on the case of Afzaal Ahmad v. The State (2003 SCMR 573). Further contended that grant of bail in cases falling outside the prohibitory clause, no doubt, is a rule and refusal of bail in such-like cases is an exception, but this does not mean that all persons accused of such-like offences must be released on bail automatically or mechanically.

6. I have heard the arguments of the learned counsel for the parties and perused the police file.

7. The Investigating Officer vide his Diary No.13 dated 9-9-2006 has declared the petitioner guilty of the offence under section 408, P.P.C. but to declare the petitioner guilty of the offence, he has recorded the statements of the complainant Muhammad Siddique Khan Managing Director of the Company and one Bashir Ahmad son of Muhammad Khan an employee of his company. Except these two witnesses the statement of no other witness has been recorded and the complainant has produced Photostat copies of some documents like the power of attorney, cash receipts certificate and the passport of the petitioner along with the two Photostat copies. There is .no direct evidence available on the police file establishing the receipt of the disputed/embezzled amount by the petitioner in "Malaysia" sent by the complainant. The Photostat copies of certain documents produced by the complainant have no evidentiary value presenty. The complainant has to prove these documents during the trial of the case in accordance with law. The offence under section 408, P.P.C. is not punishable within the prohibition contained in section 497, Cr.P.C. The offence is punishable with imprisonment of either description which may extend to seven years RI. and shall also liable to fine. The documentary evidence produced by the complainant before the I.O. is in possession of the prosecution and there is no possibility of tampering with the same if the petitioner is released on bail. The guilt of the petitioner is yet to be determined by producing the prosecution evidence in the Court, therefore, it is sufficient to bring the case of the petitioner within the ambits of further inquiry. Reliance in this context can be placed to the cases of Arif Barlas v. The State (2006 PCr.LJ 202) and Saeed Ahmad v. The State (1996 SCMR 1132). The petitioner is behind the bars. The offence of which the petitioner has been charged does not fall within the prohibitory clause of section 497, Cr.P.C. The petitioner is in the judicial lock-up. The trial' of the case has not been commenced as yet. The allegation against the petitioner needed further inquiry. The superior Courts by taking into consideration this aspect of the case have released the accused on bail. Reference in this context can be made to the case of Hakim Mumtaz Ahmed and another v. The State (PLD 2002 SC 590). In the case of Subhan Khan v. The State (2002 SCMR 1797) the Honourable Judges of the Supreme Court have very clearly observed that accused in an offence which does not fall within the prohibitory clause of section 497, Cr.P.C. cannot claim concession of bail as of right, but in the light of general principle the bail in such cases is granted as a rule. Prima facie it is a dispute of civil nature. It is a matter of determination that whether the petitioner has received the said amount or misappropriated the same is a matter of accounts. The petitioner is behind the bars and no more required by the police. In such-like cases also the petitioner is entitled for concession of bail. Reliance in this context can be made to the cases of Noor Muhammad v. The State (1990 PCr.LJ 732) and Khurshid Ahmad v. The State (1987 MLD 1982). It is also settled principle of the Honourable Supreme Court that accused person could not be kept in custody as a punishment particularly when the Court was convinced that the material produced before it was not sufficient to involve him in the commission of the offence unless by conducting further probe, incriminating evidence was collected and placed on record. In this context reference can be made to the case of Ch. Tanveer Khan v. Chairman, National Accountability Bureau and others (PLD 2002 SC 572).

8. The evidence collected by the prosecution and keeping in view the cases referred to above, this bail application is accepted and petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.5,00,000 (Rupees five lacs only) with one surety in the like amount to the satisfaction of the trial Court/Area Magistrate/Duty Magistrate concerned. H.S.T./S-222/L??????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.