1999T Cr (PLP)

Tasleem Hassan for the State. Farmanullah Khan Chamkani for the Complainant (Respondent No. 1). Date of hearing: 16th October, 1998. Messrs Habib Bank Limited (Cantt. Branch), Peshawar has preferred this petition through their attorney for cancellation of bail allowed to the respondent namely, Habibullah son of Muhammad Khan for offences under section 403/406/409/420/109, P.P.C. in case F.I.R. No.13 of 1997, dated 15‑12‑1997, of Police Station F.I.A./C.B.C. vide the impugned order of the learned Judge, Special Court (Offences in Respect of Banks), N.‑W.F.P., Peshawar, dated 7‑1‑1998.

2. The facts of the case are that respondent namely, Habibullah approached a Branch of Habib Bank Limited, Peshawar Cantt on 15‑12‑1997 at about 10‑00 a.m. where he deposited Bank Draft No.142174/0224/01, dated 11‑12‑1997 for a sum of Rs.1,08,

000. Since the respondent was an account holder of the aforesaid Branch of the Bank, therefore, he deposited the draft in his account and simultaneously issued Cheque No.224282 for withdrawal of Rs.1,08,

000. The cashier of the petitioner's Bank namely, Nihar Hussain inadvertently paid a sum of Rs.10,08,000 to the respondent in excess of Rs.9,00,000.

3. Detecting the aforesaid fact the Bank Authorities went in search of the respondent and on the same day located him in the vicinity of village Jehangira about 40 kilometers away from Peshawar. The accused respondent was interrogated by the Bank Staff and was brought to Peshawar on the same day. During the investigation by the Bank Staff the accused‑respondent admitted his guilt and informed that the misappropriated amount had been taken away by his friend namely Kamal or Ghafoor. Upon this information the Assistant Vice-President and Chief Manager of the petitioner's Bank namely, Ashfaq Ahmad sent a written report to the Deputy Director, F.I.A., C.B.C., Peshawar on 17‑12‑1997 on the basis of which case F.I.R. No.13 of 1997 of Police Station F.I.A. C.B.C. was registered on 18‑12‑1997. The accused‑respondent admitted the contents of the F.I.R. in his confessional statement recorded by a Magistrate on 23‑12‑1997. Later on during the investigation the Investigating Officer recovered a sum of Rs.7,00,000 which were produced before him by one Mushtaq Ahmad son of Haji Muhammad Wali, a peanut dealer who alleged that this amount was given to him by the present respondent and his companion namely Kamal to be kept for them in safe custody. The accused was arrested after registration of the case in the present case whereafter he moved an application for bail before the Judge, Special Court (Offences in Respect of Banks), N.‑W.F.P., Peshawar who by her order, dated 7‑1‑1998 released him on bail in the sum of Rs.50,000 in cash. Feeling aggrieved of the aforesaid order this petition has been preferred for cancellation of the bail.

4. I have heard the learned counsel for the parties and have gone through the record of the case.

5. As already mentioned in the judgment the recovery of Rs.7,00,000 was effected from the possession of Mushtaq Ahmad and that the remaining amount of Rs.2,00,000 have not so far been recovered from anyone. The record is silent to the effect that the Cashier of the Bank and Kamal the co‑accused have not so far been involved in the case. The only charge available against the accused‑respondent is that he knowingly took away the misappropriated amount from the Bank after he had issued a cheque of Rs.1,08,

000. The learned Judge, Special Court was of the view that the investigation is almost complete and the detention of the respondent in the judicial lock‑up for indefinite period would be held as punishment in advance. The case of the present respondent appears to be arguable in the light of my afore discussed observations. It is a general rule adopted by the Courts that once bail is granted by a Court of competent jurisdiction then strong and exceptional grounds are required for its cancellation Since the Investigating Agency has half‑heartedly investigated the case, therefore, I decline to interfere with the impugned order. In view of the above the application for cancellation of bail is dismissed. In fact the Special Court should not have fixed bail amount less than the amount mentioned in the charge. Q.M.H./M.A.K./219/P. Bail not cancelled.