1. ORDER TUFAIL H. EBRAHIM, J.---Through this order I will dispose of the above two bail applications arising out of F.I.R. No.773 of 2009 under section 408/ 34, P.P.C. With SITE Police Station(A) Karachi (West Zone) against the accused named above and six others on 30-9-2009 for offence committed on 1-11-1999.
2. "Briefly the facts as alleged in the F.I.R. Are that Mr. Umer Malik former General Manager and his sales team comprising of Farrukh Shahzad son of Shafiq Nadir, Regional Sales Manager Control Zone (Lahore) Azizuddin son of Ziauddn, Lahore Area Manager Central Zone (Lahore) Muhammad Kashif son of Abdul Hameed, Sales Manager North Zone (Rawalpindi), Sheikh Adeel Ahmed son of Sheikh Khalid Mehmood Shakir, Sale Officer Central Zone (Lahore), Muhammad Zubair son of Muhammad Shabbir, Sakhi Hassan North Nazimabad Karachi, Area Sales Manager South Zone (Karachi) Muhammad Hasan son of Maqbool Ahmed, Senior Sale Officer, Central Zone (Lahore) who was employed Messrs Shahsons (Pvt.) Limited, engaged in the business of manufacturing and marketing of writing instruments and stationery items having its factory and Head Office at Karachi, have jointly committed offence by misappropriating the company's money and taken an amount of Rs.13.8 Million during the period of their employment with the company. The Modus Operandi of the culprits was that on the instructions of Mr. Omer Malik former general Manager principal culprit, the other accused created number of fake customers and allegedly supplied goods to them with net discount of 8% to 9% meant for rural area sales, but in fact they sold the company's products in the whole sale markets of Lahore at net discount of 6% to 7% against advance cash payment. The difference of 2% was wrongly withheld and pocketed by Mr. Omer Malik and allegedly shared by other accused. That besides pocketing - 2% discount as mentioned above Mr. Omer Malik also misappropriated Rs.2.7 million on account of over invoicing advertisement bills. It transpired after investigation by the company that the parties are fictitious and in fact all advertisement services were provided by one man. It is submitted that above mentioned person have committed as offence of fraud, cheating, dishonesty, misappropriated employer's property and criminal breach of trust."
3. The initial pre-arrest bail was granted to the applicants/accused was granted by the learned Additional District Session Judge Karachi (West). The applicant/accused joined and participated in the investigation and also submitted detail statement in writing to the Investigation Officer. The pre-arrest bail of the applicants/accused was dismissed on 24-12-2009 and the applicants/accused surrendered before the I.O. And were arrested and remanded to police custody upto 31-12-2009. The applicants/accused moved bail applications before the Judicial Magistrate who after hearing the parties granted bail to both the applicants/accused in the sum of Rs.1,000,000 each. Thereafter, the I.O. Submitted Challan after completion of investigation: The Complainant filed miscellaneous application for cancellation of bail on 16-1-2010 under section 497(5), Cr.P.C. Before the learned District Session Judge Karachi (West), which Bail Cancellation Application was heard on 22-4-2010. The said application was accepted and order was orally announced in court on 9-8-010, but the case file was kept in chambers and copy of order was not provided to the applicants/ accused until 13-8-2010, which has led to filing of the above bail applications under section 498, Cr . P. C Per learned counsel of the applicants/ accused, the order of cancellation of bail is perverse and based upon presumptions without considering the facts and application of judicial mind, as no valid grounds were there for cancellation of bail. It was argued by the learned counsel that complainant had no knowledge or authority to lodge the F.I.R. And there was delay of more than ten years in lodging F.I.R. Per learned counsel as per the F.I.R. The alleged offence has been committed in Punjab, but due to mala fide and collusion of the Police and the complainant the F.I.R. Has been lodged at Karachi.
4. Per learned counsel during investigation no documents implicating the applicants/accused had been provided by the complainant. Per learned counsel no goods or any property of the company was entrusted to the applicant/accused. The only duty/obligation of the applicants/accused was to obtain orders and process the transaction in an efficacious manner. Once orders were booked the goods were directly delivered to the customers and amount was also directly deposited in the accounts of the Company and as such Section 408 of P.P.C. Is not applicable in the instant case.
5. The learned counsel has argued that no investigation was conducted and the allegation of misappropriation is contrary to the records of the Company. The accounts of the Company are audited by independent Chartered Accountant who have never disclosed the said loss and/or reported any misappropriation. No reprimand or show-cause notice had been issued against the applicants/accused, on the contrary the company has been appreciating the services rendered by the applicants/accused and promotions have been granted to them as during their tenure the sales and profit of the company has increased many folds.
6. Per learned counsel no specific role has been assigned to the applicants/ accused. There is no evidence of any misappropriation of any goods or money. The applicants/accused have fully cooperated with the I.O. Prior to the arrest, even when they were arrested and after their bail applications were cancelled. On the contrary the complainant has not produced any documentary evidence to the I.O. Per learned counsel the entire case is based on documents which are already in possession with the prosecution and there is no possibility of tampering of evidence by the applicants/accused. There is even no corroborative evidence available to associate the applicants with the alleged offence.
7. The learned counsel for the applicants/accused has argued that the F.I.R. Has been mala fide lodged and as a counter blast when the applicant had submitted their resignations. The company has lodged the F.I.R. To avoid payment of dues, retirement benefits, and as a punishment for resignation so that the applicants/accused are unable to work for competitors. Learned counsel has vehemently argued that there was no reason for the cancellation of bail and no exceptional grounds were pleaded for cancellation of bail.
8. The learned counsel of applicant/ accused in Criminal Bail Application No.813 of 2010 has adopted the arguments of the learned counsel of applicant/accused in Criminal Bail Application No.811 of 2010. Per learned counsel huge amount is payable by the company to the applicant/ accused and the applicant/accused has filed a suit against the company for recovery of Rs.4,000,000 which is pending adjudication in the High Court. Per learned counsel the company accounts are being yearly audited but no misappropriation as alleged have ever been reported.
9. Learned counsel for the applicants/ accused in support of their contentions have relied upon the following case law:--
(1) 1999 PCr.LJ 1074, (2) 2004 SCMR 231, (3) 2006 PCr.LJ 252, (4) 1999 MLD 408, (5) PLD 2004 Karachi 617, (6) 1971 PCr.LJ 537, (7) 2007 PCr.LJ 233, (8) PLD 2005 Karachi 41, (9) 2006 PCr.LJ 202, (10) 1996 SCMR 1132, (11) 1983 PCr.LJ 2010, (12) 1999 PCr.LJ 958, (13) PLD 1995 SC 34 and (14) 2000 PCr.LJ 518.
10. Learned counsel for the complainant has argued that the bail order dated 1-1-2010 was passed by the learned VI Judicial Magistrate on the basis of submission of statement of accused persons that they are ready to furnish/deposit surety amount equivalent to property value approximately two million rupees. 'The bail was granted to the accused persons on furnishing surety in the sum of Rs.1 million each and the order was not passed on the basis of arguments advanced by the parties and as such the bail was rightly cancelled by the IV Additional Sessions Judge, Karachi West. Per learned counsel prima-facie the accused/applicants are the brain behind the misappropriation and fraud, which has been perpetuated on the company over a period of 10 years and on coming to the knowledge the company has immediately lodged the F.I.R. Per learned counsel the complainants are fully proceeding in the trial and have not wilfully or deliberately failed to produce the prosecution witness and there is no mala fide intention of the complainant against the accused/applicants to implicate them falsely in the present case. In support of his contention learned counsel relied upon the following case law:--
(1) PLD 2009 SC 440, (2) 2010 SCMR 1221, (3) 2010 SCMR 855, (4) 2009 PCr.LJ 1140, (5) 2005 YLR 609,
(6) 2005 PCr.LJ 1797, (7) 2006 YLR 3013, (8) 1999 PCr.LJ 128 and (9) 2000 PCr.LJ 103.
11. The learned A.P.-G. Has not opposed the applications for the grant of bail to the applicants/accused on the grounds that the case is based on documentary evidence and all relevant documents are in possession of the prosecution and there is no likelihood of tampering of evidence.
12. In the case of Muzaffar Iqbal v. Muhammad Imran Aziz and others reported in 2004 SCMR 231, it has been held as under:-- "It is well settled by now that `considerations for the cancellation of bail are different from the considerations for the grant of bail. Section 497(1), Cr.P.C. Prohibits the grant of bail for offences punishable with death or imprisonment of 10 years or over, section 497(5), Cr.P.C. Does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr.P.C. The discretion is left in the Court under section 497(5), Cr.P.C. Which is pari meteria with the principles which apply to the setting aside of orders of acquittal' (Mian Dad v. The State 1992 SCMR 1289)."
13. In the case of Arif Barlas v. The State, reported in 2006 PCr.LJ 202, it has been held as under:- "As per F.I.R., embezzlement took place from 2002 to 2005 within a period of three years and during this period, there must be some different audits, but nothing was found. However, the alleged embezzlement as per F.I.R. Had taken place between 2002 to 2005 and the F.I.R. Was on 2-5-2005 with a delay of three years and this inordinate delay is unexplained. There is nothing on record to show that any show-cause notice was issued to the petitioner by the complainant. The F.I.R. Was lodged when the petitioner left the service. The case against the petitioner entirely depended upon documentary evidence which was in possession of the prosecution and there was no possibility of tampering with the same by the petitioner."
14. In the case of Syed. Amir Ahmed Hashmi and another v. The State reported in PLD 2004 Karachi 617, it has been held as under:-- "The prime question as to whether the invoices were fake or not is yet to be determined at the trial, but for the time being in view of the foregoing discussion we are of the considered view that the applicants are entitled to concession of bail."
15. In the case of Syed Abdul Qadeer v. Mirza Ishtiaq Hussain 1971 PCr.LJ 537, it has been held as under:- - "This Court is chary to interfere and normally refrains from interfering where the evidence has not been recorded. The question whether it was a trust, a case of cheating or no penal offence has been made out, can be determined after the evidence is adduced by the parties, and it is for the trial Court to determine all these questions."
16. In the case of Saeed Ahmed v. The State, reported in 1996 SCMR 1132, it has been held as under:-- "The case entirely depends upon documentary evidence which seems to be in possession of the prosecution and challan has already been submitted.. The objection of the learned counsel regarding addition of section 409, P.P.C. May carry some weight while considering the bail application. As there is no possibility of tampering with the evidence, which is entirely documentary in nature and in possession of the prosecution, in the circumstances, we convert the petition into an appeal and allow it, and grant bail to the petitioner."
17. In the case of Tariq Bashir and 5 others v. The State, reported in PLD 1995 Supreme Court 34, it has been held as under:--- "Question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail because there is a were difference between the jail life and the free life. So, benefit of reasonable doubt about occurrence itself, identity of the accused, part allegedly played by him in the occurrence, his presence on the spot and on the question of his vicarious liability, would .Go to him even at bail stage. It is by now judiciously recognized that there is a tendency in our country to involve innocent persons with the guilty. Once an innocent person is falsely involved in a serious case then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial. When a person is detained in the jail, all his dependents also suffer hardships. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run. So, whenever reasonable doubt arises with regard to the participation of an accused person in the crime, he should not be deprived of the benefit of bail. The bail can neither be withheld nor cancelled as punishment."
18. In the case of Sheikh Muzaffar Hussain And another v. The State, reported in 2000 PCr.LJ 518, it has been held as under:-- "No material except the instant F.I.R. Is available with the prosecution to establish the implication of the petitioner in the alleged offence. It is true that normally in theft cases bail is not extended but considering the facts that the petitioner himself had filed a civil suit against the complainant and also that no recovery was effected from his son and his were co-accused and also that the complainant has not even joined the investigation, I am persuaded to confirm the bail already granted to the petitioner."
19. The case-laws relied by the learned counsel of the complainant are distinguishable and contrary to the facts and circumstances of the present case.
20. I have heard the learned counsel of the parties and learned A.P.-G. And perused record and the case laws cited by the learned counsel. There has been unreasonable and unexplained delay of ten years in lodging of F.I.R. And deliberation and consultation cannot be ruled out. Prima facie the complainant has failed to show what goods or any property of the company was entrusted to the applicant/accused and the reason of failure on the part of chartered accountants and auditors to detect such huge fraud for such long periods. It was also not disclosed that what investigation led to the discovery of the fraud and cheating and whether any internal inquiry or show cause notice were issued to the applicants/accused and or any other employees. Since orders were booked the goods were directly delivered to the customers and amount was also directly deposited in the accounts of the Company to establish guilt it would require further inquiry and evidence to be recorded. Prima facie the allegation of misappropriation is contrary to the available record of the case as the company has been appreciating the services rendered by the applicants/accused and promotions have been granted to them as during their tenure the sales and profit of the company has increased. There is no allegation that the, applicants/accused have not cooperated with the I.O. And the case is based on documents and allegations against the applicants/accused, which would require recording of evidence. The alleged documentary evidence is in the possessive of the prosecution and there is no possibility of tampering of evidence by the applicants/accused.
21. A case has been made out for, further investigation within the meaning of section 497(2) of the Cr.P.C. There is counter claim by the applicants/ accused against the company and a civil suit is also pending adjudication. My tentative view at this stage is that there is reasonable doubt as to the involvement and participaction of the applicants accused in the alleged offence and therefore they should not be deprived of the benefit of bail.
22. For the facts and reasons as aforesaid the interim bails earlier granted to the applicants/accused are confirmed on the same terms and conditions. The above discussion and findings are only tentative in nature and should not influence or prejudice the trial court in arriving at a just and fair decision, based on the evidence to be adduced at trial.