1989 P Cr (PLP)

Naeem Ahmad Khan alongwith Abdul Majid Khan for Applicant. This is an application for pre‑arrest bail by Naeem Ahmad Khan. The charge against him is that during the course of his posting as Manager of M.C.B. Chak Chelianwala, Tehsil Phalia, District Gujrat, he embezzled sums of Rs. 61,000, Rs. 1,00,000, Rs. 50,000, Rs. 6,340, Rs. 25,000, Rs. 10,350 and Rs. 1,568.60, respectively of Ali Muhammad, Nazar Muhammad, Sultan, Muhammad Salahoon, Ali Bahadur, Muhammad Inayat and Mst. Ghulam Fatima which were entrusted to him and for which he had issued receipts and made entries in the relevant pass books. The said allegations were supported by the said account holders before the Controller of Branches, Regional Office, M.C.B., Gujrat and before Amjad Ali Rizvi who had taken over from the accused on his being immediately transferred due to the said allegations. The said allegations were also supported by the written applications filed by the said account‑holders, stating that they had handed over the said sums to the accused, the deposit receipts produced by them showing the deposit of these sums with the accused whose signatures are available on the said receipts and the pass books which bear the credit entries of the said sums in the hand of the accused as well as the ledger accounts of the said account‑holder which do not .show any credit entries of the said sums. Prima facie, therefore, on the evidence, at present available, there are reasonable grounds to believe that the petitioner has committed offence under sections 409 and 477‑A, P.P.C. Subsection (6) of section 5 of the (Offences in Respect of the Banks (Special Courts) Ordinance, (IX of 1984) lays down definite prohibition against grant of bail to such persons. The accused petitioner cannot, therefore, be granted bail in this case. Thus, one essential condition for the grant of pre‑arrest bail, namely, that there should also be a prima facie case for the grant of bail on merits as laid down in Hidayat Ullah Khan v. The Crown P L D 1949 Lah. 21 (1713) as reiterated in Shabbir Ahmad v. The State P L D 1981 Lah. 599 (FB), appears to be missing in this case.

2. The accused‑petitioner has, in this application for bail before arrest, given a long story to show that Mirza Ehsanullah, Controller of Branches, Regional Office, M.C.B. Gujrat, was motivated by mala fides on his part in filing this F.I.R. against the accused and the same was the result of machinations on the part of the said Controller against the accused.

3. I have scrutinized the allegations made in the said story. The allegation it that Mirza Ehsanullah, Controller of Branches was a supporter of the union of the bank employees which had been defeated by the union of which the accused -petitioner was an ardent supporter and since the accused‑petitioners support to the winning union was pronounced, the Controller conspired to involve the accused‑petitioner in some false case. The accused‑petitioner has, however, produced no affidavit of any independent person to establish the said allegation against the Controller of Branches. Considering the position of the Controller which he enjoys, it looks highly improbable on his part to join any conspiracy against his subordinates especially when he is in a position, to take any departmental action against the said subordinate and in case of commission by the said subordinate of any offence, to lodge an F.I.R. against him. In any way, the factum of the accused‑petitioner being an ardent supporter of the winning union does not appear to my mind to be sufficient to impel the Controller of Branches to conspire to involve the accused‑petitioner in a false case. Mala fides on that score do not appear to be made out.

4. In para. 4 of this application, the accused‑petitioner has further averred that in 1981 the Controller caused an inquiry to be conducted against him in the matter of agricultural loans but the petitioner emerged innocent in that inquiry. Again the accused‑petitioner has not produced copy of the report of the Inquiry Officer to show that this had actually taken place. In any way, the said circumstance too does not appear to me to be sufficient to evoke any ill‑will in the mind of the Controller who is after all entrusted with the *responsibility of looking B into the conduct of different employees and officers of the bank and to watch whether any official officer was not embezzling sums from the branch. If on allegations made against an employee, an enquiry is ordered by a senior officer against the said employee it cannot be said that the said officer had become inimical towards the said employee as the enquiry can prove the allegations to be false and establish the integrity of the employee and vindicate his honour. If on mere order by a senior officer that an enquiry be held, enmity of the person proceeded against is attributed to him, no such officer would proceed to scrutinize the conduct of his subordinates resulting in free hand to them to deal in any way with the funds of the department. Such a thing cannot be countenanced any consequently no inference of enmity can be, drawn from such a circumstance. C Thus, on the basis of this allegation too, it cannot be said that there was any bad faith or any ulterior motive on the part of the Controller of Branches in filing the F.I.R. against the accused‑petitioner.

5. In the result, it appears to me that on the averments made in this application no case of existence of mala fides on the part of the Controller of Branches is made out which is the other important condition for the grant of bail before arrest as laid down in Murad Khan v. Fazal‑e‑Subhan and another P L D 1983 SC

82. For the foregoing reasons, I dismiss this application for pre‑arrest bail in limine. H.B.T./37/Sp.B. Application dismissed.