' IQBAL HAMEED-UR-REHMAN, J.---Learned counsel seeks pre-arrest bail of petitioner in F.I.R.
No,157/09, dated 6-2-2009, under section 381, P.P.C. Registered at Police Station Gulberg, District Lahore.
2. Briefly, the allegations against the petitioner are that while serving in the Organization of the complainant Duplex Smile Again Foundation (Pvt.) Limited as Accounts Manager, he committed some theft of documents, receipts, invoice, electronic data and an amount of Rs,5 lac was not returned back to the complainant after encashing the same from the bank.
3. It is stated by the learned counsel for the petitioner that the delay in the lodging of the F.I.R. Was deliberate and it was with consultation; that the instant case has been registered against the petitioner with mala fide intention just to humiliate the petitioner who is a qualified person; that the petitioner has committed no offence. It is further stated that the petitioner was previously working in Holiday Inn Hotel at Multan with a reasonable monthly salary and his wife was also working as Physiotherapist in the Nishter Hospital Multna. It is further stated that Manzar Latif who claimed himself to be the partner of the Duplex Smile Again Foundation (Pvt.) Limited, he stayed in the said hotel of Multan and on acquaintance with the petitioner he offered him as well as his wife a job with a reasonable salary package in the said Foundation. The petitioner and his wife joined the said Foundation at Rs,30,000 per month each and also with the facility of accommodation provided at House No,127 Bahria Town, Lahore. It is also alleged that during the period of employment of the petitioner in the said Foundation, some dispute arose between the Chief Executive Musarrat Misbah and the partner Manzar Latif and they both went to the Courts as well as criminal cases have been registered vide F.I.R. No,1028/2008 under section 29 of the Telegraphic Act read with section 506, P.P.C. Registered at Police Station Gulberg, Lahore by the complainant Musarrat Misbah against Manzar Latif etc. And F.I.R. No, 1087/2008 dated 24-10-2008 under sections 420, 468, 471, 506, P.P.C.
Was also registered at Police Station Gulberg, Lahore. It is also stated that these. F.I.Rs were registered when the petitioner was serving in the Duplex Smile Again Foundation (Pvt.) Limited; that the complainant had apprehensions in her mind that the petitioner being Accountant was preparing statements of accounts and other papers to help the other party and favouring Manzar Latif etc. Further stated that a Writ Petition No,14871-Q/2008 was filed by Manzar Latif for quashment of F.I.R. No,1087/2008 dated 24-10-2008 which was placed before Honourable Sh.Azmat Saeed, J.
Who vide order dated 31-10-2008 .Stayed the investigation of the case F.I.R. No,1087/2008 against which the complainant party went in C.P. No,63-L of 2009, which was dismissed being premature.
Thereafter the writ petition was decided with the following observations:-- "While this Court cannot and should not ordinarily stifle the investigation, yet it cannot and should not sit idle and to allow perpetuate gross abuse of the process of law by the police acting as a henchman of a private party transgressing the ambit of its statutory duty so as to force the settlement of civil dispute through the operates of criminal law."
' It is further stated that the petitioner moved bail petition before the learned Addl. Sessions Judge, Lahore. The bail application of Manzar Latif was accepted vide order dated 11-4-2009 while that of the petitioner was refused vide order dated 4-4-2009. While refusing the bail of the petitioner the learned Addl. Sessions Judge, failed to mention the contentions of the petitioner in the order.
Further stated that the mala fide in lodging of the F.I.R. Is apparent; that although the F.I.R. Is dated 6-2-2009 and the occurrence is stated to be of 4-2-2009 but in fact there is 24 days delay in the lodging of the F.I.R. When taken in the perspective of the cheques issued that is the first cheque of Rs,2,50,000 was issued on 16-1-2009 and the second cheque was issued on 26-1-2009, considering the dates in the cheques it can safely be taken that there is a delay of 24 days. Further stated that the petitioner had encashed the said cheques and had duly handed over the same to the complainant and this may be the reason that the complainant had not got lodged the F.I.R.
Immediately if she had not received the cash amount. In this regard the lodging of the F.I.R. Should have been made immediately as has been enunciated in 2004 SCM R 1185, as such, the possibility of an afterthought and deliberations cannot be ruled out. That the mala fide of the complainant Musarrat Misbah also becomes apparent on account of the F.IR. No,107/09 dated 3-2-2009 under section 13/20/65 Arms Ordinance is taken into consideration whereby the complainant by using her influence involved the petitioner in a false case by planting weapon. It is further stated that the Car No,618/JK belonging to the Duplex Smile Again Foundation (Pvt.) Limited and which was being used by all the employees of the Foundation. On the day of occurrence of the said F.I.R. The petitioner was allowed to use the car and immediately when the petitioner drove the car a preplanned raid was conducted on the petitioner and he was involved in the instant case under section 13/20/65 A.O. Immediately on the arrest of the petitioner the complainant party forcibly and illegally threw out the household articles of the petitioner from his house No,127 Bahria Town, Lahore ejecting the petitioner from the house. On being released on bail the petitioner immediately moved applications before the C.C.P.O. Lahore and the Senior Superintendent of Police Model Town, Lahore for the illegal ejectment of the petitioner and his wife from House No,127 Bahria Town, but no action till today has been taken on these applications at the behest of the complainant, who is an influential lady. It is further stated that the petitioner had joined the investigation on 18-2-2009, offered his innocence on oath; that nothing is to be recovered from the petitioner; that the petitioner is entitled for the grant of pre-arrest bail.
5. On the other hand, the bail application has vehemently been opposed by the learned counsel for the complainant as well as by the learned A.P.G. The learned counsel for the complainant at the very outset states that the matter in one case cannot be taken into consideration in the other case.
He further states that the documents are to be recovered from the petitioner. There has been no delay in the lodging of the F.I.R. Which has been promptly lodged. The cheque was encashed and thereby the cash was to be forwarded to Col. Tanvir, who is an agency holder of the Duplex Smile Again Foundation (Pvt.) Limited, same has not been done and Col. Tanvir through a letter dated 4- 2-2009 had informed the complainant about it and after receiving the said letter the instant F.I.R.
Had been got registered on 6-2-2009 as such, delay cannot be attributed. It is further stated that the other amount of Rs,250,000 was to be given to Mr. Farooq Hassan; that the petitioner had also misappropriated the amount of Rs,17750 which was for the payment of the electricity bill as well as further amount of Rs,37,000; that the petitioner has not urged any mala fide against Col. Tanvir.
Moreover, the gunman Ghauri in his statement under section 161, Cr.P.C. Has stated that the petitioner has been taking out files from the office stating that he has to do some unfinished work with the files; that the evidence of Masood Akhtar one of the Directors of the firm has also been got recorded against the petitioner although the offence under section 381, P.P.C. The sentence of which is seven years in view of the fact that a clerk or servant is committing the offence in whom the owner has placed his trust. It is a pre-arrest bail, the mala fide on the part of the police and complainant has to be specifically urged. Reliance is placed on 2007 YLR 1306, 2000 SCMR 1412, 2006 PCr.LJ 584, 2002 SCM R 442, 2009 SCM R 174. It is further stated that it is a white-collar crime; that the wife of the petitioner is not at all a qualified M.B.,B.S., that the petitioner was also not an employee in the Holiday Inn Hotel; that Manzar Latif is not a partner of the firm, he had been franchise holder for running a centre of the Duplex Smile Again Foundation (Pvt.) Limited and in this regard Manzar Latif had prepared a forged document showing himself to be a 50% partner of the firm; that the challan has been submitted in the Court and that the learned Addl. Sessions Judge, Lahore has rightly dismissed the bail application of the petitioner.
6. The learned A.P.G. States that it is a white-collar crime, as such the investigation has not been conducted satisfactorily in this direction. The list of the alleged documents is attached on the record; the same are to be recovered. The said documents are alleged to have been delivered to Manzar Latif partner of the Foundation, which are to be recovered.
7. Arguments heard, record perused.
8. From the contentions raised by the learned counsel for the petitioner as well as from perusal of the record it is apparent that a dispute arose between the complainant and Manzar Latif stated to be a partner of the Foundation, regarding rendition of accounts and partnership. In this regard, there is enough material on the record that they are involved in both criminal and civil litigation in view of the same, false involvement of the petitioner in the instant case cannot be ruled out as is apparent from the contentions raised by the learned counsel for the petitioner. The basic point involved in the instant case is that various documents, receipts, invoices and electronic items were found missing and the same are allegedly to have been in the custody of the petitioner and the said documents are stated to have been handed over by the petitioner to Manzar Latif who is also alleged to be a partner of the firm. Manzar Latif being a partner had himself got easy access to the said documents then why he would ask the petitioner to be a carrier for him, does not appeal to mind. Moreover, when the documents are admittedly stated to be with Manzar Latif partner, then recovery is not to be made from the petitioner as such, no recovery is to be effected from the petitioner. So far as the allegation with regard to Rs,5,00,000 is concerned, also creates doubts. It is a normal practice in business community that cash payments are immediately confirmed as such, the delay Of 24 days after encashment of the cheque further creates doubts. The petitioner has been implicated in this case with mala fide. In view of the same, the case of the petitioner becomes that of further inquiry. The learned counsel for the petitioner has substantially been able to show mala fide on the part of the complainant. Therefore, the petitioner has been able to make out a case for grant of pre-arrest bail to him.
9. In view of what has been discussed above, this bail petition is accepted. Ad interim bail already granted to the petitioner vide order dated 8-4-2009 is hereby confirmed subject to his furnishing fresh surety bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.