2009 PLP 591 (MLD)

SYED MAHMOOD ALAM RIZVI, J.

The applicant has impugned the order, dated 31-10-2007 passed by the learned Sessions Judge, Karachi East in Criminal Bail Application No.948 of 2007 of Crime No.320 of 2006 under section 408, P.P.C. registered at Police Station Ferozabad, Karachi, whereby the bail is granted to respondent No.2.

2. Precisely, the facts of the prosecution case are that the respondent No.2 was working as Accountant and Administrator in the clinic of the applicant and was dealing with all the transactions of cash and was also depositing the earnings of clinic in the Bank account of the applicant. However, the applicant's cheque of Rs.17,00,000 was dishonoured by the Bank. At that time the respondent No.2 was on leave hence the applicant could not enquire from him about the non-availability of the fund. On his return from leave, the applicant enquired into the matter from the respondent No.2, who, firstly, confessed his guilt and assured the applicant that he would return the amount, but later on refused to return the amount, hence the applicant lodged a report against the respondent No.2.

3. That his first Bail Application before arrest was rejected by this Court on 18-9-2006, but thereafter, he surrendered before the trial Court, the bail application of the respondent No.2 was also rejected by the trial Court, whereafter, he was granted bail by the Sessions Judge.

4. The learned counsel for the applicant/complainant has contended that the respondent No.2 has committed embezzlement in the earnings of the applicants clinic. That the learned Sessions Court has failed to appreciate the matter and has wrongly granted the bail to the respondent No.2 as there was no delay in lodging the F.I.R. Further, the name of the respondent No.2 has been mentioned in the F.I.R. bail was granted on the ground that the offence does not fall within the prohibitory clause of section 497, Cr.P.C., whereas the Hon'ble Supreme Court had refused bail even in the case where the offence did not fall under the prohibitory clause of section 497, Cr.P.C.

5. Conversely, the learned counsel for the respondent No.2 has argued that the respondent No.2 is innocent and has falsely been implicated in the case. The respondent No.2 had surrendered himself voluntarily before the learned trial Court. He has further contended that there is inordinate delay in lodging the F.I.R. The case requires further, inquiry, and even the offence does not fall within the prohibitory clause of section 497, Cr.P.C., hence the learned Sessions Judge rightly granted the bail to the respondent No.2.

6. The learned State counsel has adopted the arguments of the learned counsel for the respondent No.2 and has supported the impugned order.

7. Heard all the respective counsel and perused the record.

8. It is an admitted fact that the F.I.R. was lodged on 4-5-2006 regarding the incident, which is said to have occurred three months before the F.I.R. and further that the impugned cheque was dishonoured on 15-4-2006 even then no F.I.R. could be registered, no doubt complainant was out of the country for three months, therefore, he is said to have failed to control the administration and the evidence had been collected at a later stage, therefore, how could the amounts have been embezzled by the applicant. No doubt, his earlier pre-arrest bail application was dismissed by this Court on 18-9-2006. Therefore, the applicant surrendered himself before the trial Court, and his post-arrest bail was also dismissed by the trial Court, but later on, granted by the learned Sessions Judge, Karachi East, on the ground that the offence does not fall within the prohibitory clause of section 497(1), Cr.P.C. That nothing incriminating had been recovered from the possession of the applicant and he was no more required for investigation. That there was difference between bail before and after arrest and as per Tariq Bashir's case reported in PLD 1995 SC 34, the grant of bail in offences punishable with the imprisonment for less than 10 years is a rule and refusal is an exception, therefore, bail was granted in the sum of Rs.3,00,000.

9. I could not find any illegality in the impugned order passed by the learned Sessions Judge, and admittedly the earlier bail application was dismissed as it was pre-arrest bail, but the impugned order is well elaborated and needs no interference, hence this Criminal Miscellaneous Application was dismissed in limini with listed applications, but the trial Court was directed to conclude the trial within six months. These are the reasons of the short order passed on 13-8-2008. N.H.Q./A-163/K Petition dismissed.