ORDER SHEET
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Date Order
with signature of Judge
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Dated of hearing 04.05.2012
Mr. Muhammad Ibrahim M. Sahito Advocate for the
Applicant.
Mr. Shehzad Afzal Advocate for the Complainant.
Mr.
Shahid Ahmed Shaikh learned APG.
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Syed Hasan Azhar Rizvi J; This bail application is filed by the
Applicant after rejection of his bail application vide order dated 11.02.2012
passed by the IIIrd Additional Sessions Judge, Karachi-South on Crl. Bail
Application No.145/2012.
Brief facts of the case as incorporated in the FIR are
that the complainant and his father are running business in the name and style
SACO Traders (Pvt) Limited at Marsten Road, Karachi. In the month of November,
2009 the complainant and his father went to perform Umrah after handing over
all business and office affairs to Muhammad Ibrahim son of Abdul Samad Shamsi
(present Applicant). When they returned from Hajj in January, 2010 the
complainant found some irregularities in the account of the business and after
further verification and checking he found embezzlement of Rs.1,52,69,767/- to
have been committed in their absence, for which Applicant was responsible. On
inquiry it was revealed that the wife of the Applicant Sanobar Ibrahim came to
office and committed fraud. She even did not have any bike but in their absence
Applicant bought a car and a flat of Rs.50,00,000/-.
The complainant kept the matter before office bearers of the Market Committee where
the Applicant accepted his guilt and the Applicant and his wife assured to
return the embezzled amount and the flat to the complainant. Thereafter,
Applicant issued 33 cheques of Rs.37,00,000/- of
different account numbers, out of which 09 cheques were bounced. When the
Complainant tried to approach the Applicant and his wife Ms. Snoober but they
avoided. Hence, the complainant lodged the FIR against the Applicant and his
wife for fraud, embezzlement, bouncing of cheques and for taking legal action
against the applicant and others involved in the matter.
Learned
Counsel for the Applicant contended that the Applicant is innocent and has been
falsely implicated by the complainant in the present case due to business
dispute. He further argued that there is unexplained delay of about 1-½ years in
registration of the FIR. He further submitted that office bearers of the Market
Committee forcibly obtained cheques from the Applicant by putting him under
fear. He further argued that out of 33 cheques only 09 cheques were bounced,
which proves that Applicant had no dishonest intention as such section 489-F
PPC is not attracted in the case. Learned Counsel for the Applicant submitted
that the offence alleged in the FIR do not fall under prohibitory clause of
section 497 Cr.P.C. therefore, the Applicant is entitled for grant of bail. He
has relied upon PLJ 2004 Cr.C. (Lahore) 552 (Rana Ehsan versus State), 2009 MLD
1189 (Ali Hakimuddin Ghulam Ai Mandviwala versus the State and another) and 2009
P.Cr.L.J. 325 (Nizar Ali Fazwani and another versus Messrs Pak Golf Leasing
Company Limited and another).
Mr. Shehzad
Afzal learned Counsel for the Complainant has argued that the Applicant was an
employee of the Complainant and when the complainant and his father went to
perform Hajj in November, 2009 the Applicant was supervising business and
office affairs of the company in their absence. When they returned from Hajj in
January, 2010 the complainant found some irregularities in the account of the
business and after further verification and checking he found embezzlement of
Rs.1,52,69,767/- to have been committed in their absence by the Applicant. The
complainant kept the matter before office bearers of the Market Committee where
the Applicant accepted his guilt and the Applicant and his wife assured to
return the embezzled amount and the flat to the complainant. Thereafter,
Applicant issued 33 cheques of Rs.37,00,000/- of
different account numbers, out of which 09 cheques were bounced whereupon the
FIR was registered against the present Applicant and his wife. He further
submitted that challan has already been submitted on 31.12.2011, charge has
been framed and the matter is fixed for evidence but for one reasons and the
other the Applicant and his counsel are avoiding to proceed with the matter.
Mr. Shahid
Ahmed Shaikh learned APG
adopted the arguments advanced by the learned Counsel for the
Complainant and opposed the grant of bail to the Applicant/accused.
I have
heard Mr. Muhammad Ibrahim M. Sahito Counsel for the Applicant, Mr. Shehzad
Afzal Counsel for the Complainant, Mr. Shahid Ahmed Shaikh learned APG and perused
the material available on record with their assistance.
On tentative assessment of material available on
record, it transpired that after commission of the alleged offence the matter
was referred to the Market Committee where the Applicant confessed his guilt of
misappropriation in the account of the company of the complainant and after
settlement issued 33 cheques amounting to Rs.37,00,000/-,
out of which 09 cheques were bounced, hence the complainant lodged the FIR.
With
regard to the objection of the learned Counsel for the Applicant that the cases
alleged upon the Applicant do not fall within the prohibitory clause of section
497(1) Cr.P.C. In my humble opinion the grant of
bail in the case to an accused in every case not hit by the prohibitory clause
of S.497(1), Cr.P.C. is not a rule of universal application and each case has
to be dealt with on its own facts and circumstances. Grant of bail, no doubt,
is a discretion granted to a Court, but its exercise cannot be arbitrary,
fanciful or perverse. The Court may decline bail to accused in offences even
not falling under prohibitory clause of section 497(1) Cr.P.C.,
if there exists recognized exceptional circumstances. Distinction is to be made
between the offence which is committed by an individual like theft and an
offence which is directed against the whole society for the purpose of bail, in
the former category practice to allow bail in cases not falling under
prohibitory clause of S.497, Cr.P.C. in absence of exceptional circumstances,
might be followed; but in latter category, the Courts are to be strict in
exercise of discretion of bail. In cases affecting whole society, the offenders
belonged to a distinct class and they qualified to be falling within an
exceptional circumstances warranting refusal of bail even where maximum
sentence was less than ten years for the offence involved, provided the Court
was satisfied that prima facie, there is material on record to connect accused
with commission of offence. To support the above version reference may be made
to 2009 SCMR 174 (Shameel Ahmed Vs. the State), 2009
P.Cr.L.J. 1140 (Ijaz Ahmed Vs. Muhammad Aslam), PLD 2007 Karachi 27 (Raja
Muhammad Zarat Khan Vs. the State) and 2007 P.Cr.L.J. 171 (Syed Maqsoom Hussain
Shah Vs. the State).
According
to learned Counsel for the Complainant challan has already been submitted on
31.12.2011, charge has been framed and the matter is fixed for evidence. Case
law cited by the learned Counsel for the Applicant are distinguishable from the
facts and circumstances therefore, the same are not applicable to the present
case.
For the
reasons discussed above, the instant Bail Application was dismissed by my short
order dated 04.05.2012 with direction to the learned Trial Court to conclude the trial
within a period of two months from the date of receipt of order and to submit
progress report on weekly basis to MIT-II of this Court.
Observations made
hereinabove are of tentative nature and the trial Court shall not be influenced
by any such observations.
J
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