' Zeshan Sarwar, petitioner in Crl. Misc. No, 7169/B of 2004, seeks his pre-arrest bail, whereas Khalid Mahmood, petitioner in Crl. Misc. No,6416/B of 2004 seeks his post-arrest bail in case F.I.R. No,377, dated 31-5-2004, registered at Police Station Gulberg, Lahore for offences under sections 380, 406, 420, 468 and 471, P.P.C. I propose to dispose of both these matters together through this single order.
2. The case of the prosecution as contained in the F.I.R. Recorded at the instance of Dr. Irfan-ul-Haq, Director Administration, Echo West International (Pvt.) Ltd., was that the Company was involved in the business of engineering and construction and its head office was located at Gulberg, Lahore; that the said Company had international repute and had been awarded a contract by the US Army for providing certain facilities and in order to execute the said contract the Company formed a team of officers to recruit skilled and unskilled workers; the complainant and others, mentioned in the F.I.R. Had also been employed for a limited period and they had been assigned different duties; ' Zehsan Sarwar, Muhammad Khaliq Javed, Khalid Mahmood and Muhammad Saleem had been appointed in the Administration Wing and had been given the task of recruiting employees for the said project and to provide transportation and Visa facilities to the said employees up to Torkham Border; that the said persons acting against the interest of the Company employed unskilled workers in place of skilled workers, such as a simple labourer instead of a mason and for this illicit act they had' received Rs,5000 from each employee; they defalcated the amount earmarked for the transportation and Visas of the said employees and also exaggerated the amount spent for the said purpose; they colluded with Sajjad, Senior Accountant, Hanif Malik, Ashraf Rafiq, employees, Nasir Ahmad Security Guard, Abid Mahmood, Driver, Muhammad Adil, and Javaid Ahmad Qureshi, Time Keepers, in their illegal act and prepared bogus accounts and receipts and fraudulently defalcated millions of rupees; the employees so appointed got exposed on their arrival at Afghanistan and could not obviously perform the work for which they 'had been recruited and had to return to Pakistan. Resultantly, the instant F.I.R. Had been registered
3. Zeshan Sarwar, the petitioner, initially obtained protective bail from the Peshawar High Court, Abbotabad Circuit, whereafter he obtained pre-arrest bail from the learned Court of Session at Lahore. However, his plea for pre-arrest bail did not find favour with the learned Additional Sessions Judge, who turned down the same vide his order, dated 28-9-2004. Khalid Mahmood, petitioner, had been arrested on 20-7-2004. His plea for post-arrest bail was firstly declined by the learned Judicial Magistrate, Model Town and then by the learned Additional Sessions Judge, Lahore vide orders, dated 24-7-2004 and 25-8-2004, respectively. Hence, the instant petitions.
4 The learned counsel appearing on behalf of Zeshan Sarwar petitioner argued that in fact the complainant had been motivated by malice inasmuch after having failed to perform the contract, the Company and its Directors had suffered a loss of face and were on the look out for scapegoats to offer some kind of excuse for their default; that no specific allegations have been levelled in the F.I.R. Against the petitioner, the allegations being general in nature; that there was no specific job description of the petitioner, which required him to undertake recruitment of employees, that the alleged incident had taken place at Islamabad and the case had been got registered at Lahore with ulterior motives. He also argued that the petitioner was not required for further investigation and that the offences charged against him did not attract the prohibitory clause of section 497(1), Cr.P.C.
' Insofar as Khlaid Mahmood petitioner is concerned, his learned counsel argued that there was a delay of six months and nine days in lodging the F.I.R.; that in fact the F.I.R. Had been registered against the petitioner and other co-accused as they had demanded their salaries from the complainant Company and in order to eat up the amount of salary the story as unfolded in the F.I.R. Had been manoeuvred; that the story regarding recruitment of employees was absolutely incorrect; that from the narration of the F.I.R. No fraud or fabrication is spelt out; that no one out of the alleged cheated workers/employees had come forward to raise his grievance; that the petitioner was a heart patient and as such was entitled to the concession of bail within the meaning of first proviso to subsection (1) of section 497, Cr.P.C. He finally argued that although almost six months have elapsed since the registration of the case, yet, no challan has been submitted. In support of his plea for bail, he relied upon cases, Mansha Khan and 2 others v. The State (1977 SCMR 449), Sadiq Ali Shah v. Sardar Khalid Umar and others (1982 SCMR 975), and Muhammad Idrees v. Collector of Customs and others (PLD 2002 Karachi 60).
5. On the other hand, the learned counsel for the complainant opposed grant of bail to both the petitioners and argued that there was a regular job manual in the field and both the petitioners were Administration. Managers and were governed by clauses 5 and 9, respectively, of the letters of appointment, which required them to act strictly in accordance with the Job Manual; that insofar as the case of Zeshan Sarwar petitioner is concerned, who is seeking pre-arrest bail in this case, no specific mala fides have been alleged against the complainant as well as the police, which is one of the basic ingredients for the grant of pre-arrest bail; that during the course of three successive investigations carried out initially by Gulshan Awan, S.-I., later on by Malik Ahmad Awais, D.S.P. And Shah Rukh, ASP, the petitioners have been found to be guilty; that according to the initial audit carried out so far, a defalcation of Rs,2,36,00,000 has surfaced and that this amount is likely to rise considerably. He argued that keeping in view the nature of allegations against the petitioners, they were not entitled to the concession of bail. In support of his plea, he has placed reliance on Muhammad Azam v. The State (1996 SCMR 71), Afzaal Ahmad v. The State (2003 SCMR 573), and Muhammad Irshad and others v. Amanant Ali and another (2004 SCMR 1375).
6. The learned State counsel in both the petitions while adopting the arguments of the learned counsel for the complainant have opposed the grant of bail to the petitioners.
7. I have heard the learned counsel for the parties and have also gone through the record brought by Gulshan Awan, S.-I.
8. The primary requirement for the grant bf pre-arrest bail is mala fides on the part of the complainant and the police. The only malice attributed by the petitioner Zeshan Sarwar against the complainant Company was that it had failed to perform its contractual obligations and as such the petitioner and others had been made scapegoats. This does not appear to be a convincing explanation for the involvement of the petitioner by the Company. Even otherwise making scapegoats could not and cannot absolve the complainant-Company of its contractual obligations. No plausible reason has been put forward as to why the petitioner has been involved by the police in the case. Likewise, the learned counsel for the petitioner could not point out as to what benefit the Company wanted to gain by lodging the F.I.R. At Lahore instead of at Islamabad.
Even otherwise, the complainant, which is a private limited company, is domiciled in Lahore and there was no embargo in initiating the criminal action at Lahore. The plea of the learned counsel for Zeshan Sarwar petitioner that since the offences did not attract the prohibitory clause of section 497(1), Cr.P.C. He was entitled to pre-arrest bail, is not available to him in pre-arrest bail cases. Reference can be made to the case of Muhammad Azam (supra), in which the Hon'ble Supreme Court observed that discretion in refusing pre-arrest bail to the accused had rightly been exercised by the Courts below in a case registered under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 read with section 451, P.P.C. As the allegations levelled against him were serious in nature and case against him was note based on mala fides or enmity. There are very serious allegations against the petitioner and recoveries have to be effected from him. No case for pre-arrest bail has been made out.
9. Resultantly, bail petition of Zeshan Sarwar petitioner is hereby dismissed.
10. I have considered the arguments of the learned counsel for Khalid Mahmood petitioner seeking post-arrest bail. As far as the delay of six months and nine days in lodging the F.I.R. Is concerned, it is not very material inasmuch as action had to be initiated only when the, alleged defalcation had come to the notice of the Management. The contention of the learned counsel that the whole drama had been enacted by the Company to devour the salaries of the employees also does not prima facie appear very impressive inasmuch as it is not expected of a Company with turnover of crores of rupees to indulge in such-like theatricals, which would ultimately malign the Company itself. Insofar as the contention of the learned counsel that no one from amongst the cheated employees had come forward with any grievance stands repelled from the record, inasmuch as there are statements recorded under section 161, Cr.P.C. Available on record of certain individuals, who claimed that they had been cheated in the manner as stated in the F.I.R. As far as the alleged heart disease of the petitioner is concerned, nothing has been brought on the record, which could suggest that the petitioner is suffering from a disease, which is not treatable in the jail. The contention of the learned counsel for the petitioner that the challan has not yet been submitted although six months have elapsed since the registration of the case does not appear to be correct as according to the Investigating Officer the challan has already been submitted in the Court.
11. The case-law cited by the learned counsel for the petitioner does not advance his plea for the grant of bail. In Mansha Khan's case (supra), bail had been allowed by the Hon'ble apex Court to the petitioner, who had allegedly caused grievous hurt to the victim and had been charged under section 325, P.P.C. Which did not attract the prohibitory clause of section 497(1), Cr.P.C. It was held that bail could not be refused merely because the offence was non-bailable and that strong reasons were required to refuse bail in a case of such nature. In Sadiq Ali Shah's case (supra), the respondent Sardar Khalid Umar had .Been granted bail by this Court on medical ground, as according to the doctor he was suffering from heart ailment and there was certificate by Assistant Professor of Cardiology, King Edward Medical College, Lahore, that his detention would severely affect his health particularly when he was already aged 55 years, the Hon'ble apex Court declined to interfere in the matter. It was a petition for cancellation of bail. The case of Muhammad Idrees (supra), was a writ petition, wherein a Division. Bench of the Hon'ble Sindh High Court had held that nobody can be allowed to contravene, flout or violate the statutes or the rules framed thereunder in the name of national interest or any other co-called high or sublime idea or ideal.
12. A word or two about the authorities relied upon by the learned counsel for the complainant. In the case of Afzaal Ahmad (ibid), the Hon'ble Supreme Court held that the mere fact that the offence did not fall within the prohibitory clause of section 497(1)Cr.P.C. Did not mean that it had become a bailable offence. It was also held in the said report that mere non-conviction of an accused person in the past for any crime is no ground, by itself, to release him on bail. In the case of Muhammad Irshad (supra), pre-arrest bail allowed to the petitioner, who was accused of a case registered under sections 420, 468 and 471, P.P.C. Had been recalled by the High Court and the Hon'ble apex Court had held that since there were prima facie serous allegations against the accused, the pre-arrest bail had rightly been recalled by the High Court and the petition for leave to appeal was declined.
13. There are serious allegations against Khalid Mahmood petitioner and prima facie he has abused the trust reposed in him by his employers causing a colossal financial loss to the Company. The mere fact that the offence does not attract the prohibitory clause of section 497(1), Cr.P.C. would not mean that the accused person becomes automatically entitled to bail. There is no merit in this petition (Cr1. Misc. No, 64I6/B-2004), which is accordingly dismissed.
Bail .