1. ' KHALID ALI Z. QAZI, J.--- This Criminal Bail Application No,73 of 2008 has been filed by applicant/accused Nasrullah Khan son of Muzafar Khan, Awan presently confined in Central Prison, Hyderabad who has been arrested in case F.I.R. No,118 of 2007 Police Station Bhitai Nagar under section 406/34, P.P.C.
2. ' The brief facts of the case as per. F.I.R. Are that complainant Fahad Noor on 12-12-2007 at 2130 hours registered the F.I.R. No,118 of 2007 with Police Station Bhitai Nagar for the incident allegedly took place about 4 years back. The contents whereof are as under:-- "Complaint is that I am posted as Manager at Qasim Filling Station. About four (4) years back from today Nasrullah Khan son of Muzaffar Khan by caste Awan and Shafqaat Ahmed son of Haji Nawafis Ali were posted as cashier on the petrol pump and during that period they committed misappropriation in the money of petrol and diesel. After checking of record and counting of cash, it transpired that Nasrullah Khan had embezzled Rs,11,67,320 and Shafqaat embezzled Rs,14,72,328 in Government property, whereafter I informed such facts to my high officers who told me to register the case at police station and I appear and make report that above employees had committed embezzlement in Government property in the money of diesel and petrol. Justice be done."
3. ' The police arrested the applicant/accused on 16-12-2007 from Askari Petrol Pump Qasim Chowk Hyderabad and subsequently charge-sheet was submitted against the applicant/accused in the trial Court.
4. ' The bail application was filed by applicant/accused before the trial Court which was dismissed on 7-1-2008 by Civil Judge and Judicial Magistrate-VII, Hyderabad. Thereafter, the bail Application No,31 of 2008 was filed in the Court of Sessions Judge, Hyderabad which was also dismissed by learned IVth Additional Sessions Judge, Hyderabad on 18-1-2008, hence this application before this Court.
5. ' Mr. Ayaz Hussain Tunio, learned Advocate for applicant submits that applicant/accused being an innocent person has malafidely, falsely and dishonestly roped in this case due to personal enmity.
6. In fact applicant/accused was not posted as cashier but was helper at petrol pump being illiterate person as such was not qualified as cashier at filling station and has been made just scapegoat by the administration of petrol pump to conceal their crime. He forcefully contended that provisions of section 406, P.P.C. Are not attracted to the present case as neither entrustment of the said property is alleged against the present applicant/accused nor it is alleged that he had dishonestly misappropriated the property which are necessary ingredients of section 406, P.P.C. As such the case of applicant/accused requires further inquiry. He has further contended that prosecution has not filed any document showing the statement of accounts and misappropriation therein, only vague atiegations have been levelled against the applicant/accused. He has further contended that even otherwise it is surprising that how for the 4 years the alleged fraud/embezzlement in the money was not detected particularly when at the petrol pumps it is common knowledge that after 24 hours the sale of petrol and the sale money are counted and such registers are maintained, then after every month such statement of sale and purchase is prepared at filling station but they did not find any misappropriation in the sale price of petrol and diesel. He forcefully contended that 4 years delay in lodging the F.I.R. Has not been plausibly explained by the complainant as such on this account also the case of prosecution is one of further inquiry. Mr. Tunio further contended that in fact it is a case of no evidence as far as the role of present applicant/accused is concerned as no documentary evidence has been filed by the prosecution to support any alleged misappropriation. He has further submitted that even from the conduct of the applicant/accused that he till the time of his arrest was continuously doing his duty as helper at petrol pump, amply proves that he-was not involved in any misappropriation of such huge amount.
7. ' On the last date of hearing i.e, 3-3-2008. Mr. Mashooq A. Samoo, learned Assistant Advocate- General, Sindh seeks some time for producing the further material of evidence collected so far by Investigating Officer and also calling the Investigating Officer in person to assist him on the point raised by learned Advocate for applicant/accused. Time was granted and today the Investigating Officer namely S.I.P. Muhammad Sharif attended the Court along with learned Assistant Advocate- General, Sindh and frankly conceded that no such evidence has been collected by him during the investigation as complainant has not provided him any documentary evidence to connect the applicant/accused with the commission of crime.
8. ' On the last date of hearing, during the course of arguments it was also directed to furnish any further material available with the prosecution in respect of explaining the ingredients of section 406, P.P.C. For constituting an offence inter alia it was directed that if there is any record which establishes the entrustment with the property to accused or with dominion over it and he misappropriated it or converted it to its own use or used it or disposed of it and that he has violated any direction of law or rule prescribing the mode in which such trust was to be discharged or any illegal conduct expressed or ample which he had made touching the discharge of such trust or he wilfully suffered some other person to do as above.
9. Mr. Mashooq A. Samoo, learned Assistant Advocate-General, Sindh on instructions submits that no further record could be produced as according to Investigating Officer there is no documentary evidence in respect of detection of the alleged misappropriation of amount to the sum of Rs,11,67,320. Mr. Samoo has also not controverted the point of 4 years' delay in lodging the F.I.R.
10. ' I have heard both the parties and have considered' the points raised on behalf of the parties, perused the recoi l, relevant law and case-law on the subject.
11. In present case without going into the merits of the case against the applicant/accused as the same can be determined only after evidence is led by the parties which is out of my domain, in my opinion, it is a case of further inquiry.
12. ' Reliance may be placed on (1) Ijaz Akhtar v. The State 1978 SCM R 64, (2) Raza Muhammad Sial v.
13. The State 1988 SCM R 1223, (3) Shakil-ur-Rehman Hamidi v. Government of Sindh and others 1995 SCM R 35, (4) Abdul Hay-uz-Zafar v, The State 1983 PCr.LJ 2010, (5) Mir Shoukat Iqbal v. The State NLR 1997 Criminal 209, (6) Pirak v. The State 1997 PCr.LJ 1900 and (7) Masood Baghpati and another v.
14. The State 1999 PCr.LJ 1648 respectively.
15. ' Under the circumstances and due to unsatisfactory lacking evidence to bring the case under the purview of section 406, P.P.C., I grant bail to the applicant/accused on furnishing the solvent surety in the sum of Rs,1,00,000 (one hundred thousand) and P.R. Bond of like amount to the satisfaction of the trial Court.