ORDER SHAHID ANWAR BAJWA, J. F.I.R. No.27 of 2009 was registered on 21-8-2009 at Police Station F.I.A. Crime Circle at Karachi under sections 409/420, P.P.C. Read with section 5(2), PC Act, 1947.
Present applicant was employed as shop manager at Canteen Store Department. Applicant with effect from 1-12-2007 was performing his duties as shop manager of CSD Supermarket, Karachi. He was granted leave from May 11, 2009 to 22nd May, 2009 which was then extended uptill 29th May, 2009. After his absence, as per CSD policy board of enquiry was constituted to check/verify available stocks, which reported that complainant had taken money out of daily cash sale for local purchase of items but he did not make the payments.
2. Learned counsel for the applicant submitted that applicant is innocent and has been roped in by intra organizational machinations. He submitted that amount of embezzlement has not been stated in the F.I.R. He further submitted that two show-cause notices were issued to the applicant for absence and there is no show-cause notice issued to applicant for embezzlement. He submitted that pre-arrest bail application was filed which was dismissed on 22-10-2009. Reasons recorded were as under:-- "Perusal of the case record reveals that the interim challan of the case was submitted on 8-9-2009 which was later on treated as final vide order, dated 26-9-2009; the complainant Muhammad Sheraz Bhatti in his statement under section 161, Cr.P.C. Has given full details of the amount for the embezzlement committed by the applicant/accused. It is also necessary to mention here that the applicant/accused was given a chance of meeting with the complainant party to show and satisfy them the amounts for which he states that he made certain payments which are liable to be recoverable from CSD Super Market in which the applicant/ accused failed. The applicant/ accused being the Incharge of CSD Super Mart and the case is at premature stage, recovery of the amount is yet to be made from the applicant/accused and, as such, the bail application merits no consideration and it is rejected."
3. Post arrest bail application was filed which was dismissed vide order, dated 28-10-2009.
According to learned counsel order is a non-speaking order because it mentioned only the following reasons:-- "The grounds raised in this application by the defence counsel have already been discussed while rejecting the pre-arrest bail application of the applicant/ accused.
The applicant/accused is recently arrested and recovery of embezzled amount is yet to be made, the offence alleged against the applicant/accused falls within prohibitory clauses of section 497, Cr.P.C. And as such, the bail application merits no consideration at this stage, hence it is rejected."
4. Learned counsel also refers to various documents to contend that there are differences in amounts stated in letter issued to Court of enquiry and in various reports submitted. Learned counsel relied upon Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), Abid Khan v. The State (2005 PCr.LJ 985), Nadeem Asghar Kaira v. The State (2006 YLR 164) and Muhammad Waqas v. The State (2002 SCM R 1370).
5. Learned DPG submitted that though there may be differences in amounts stated in various internal correspondences but there is no dispute that there had been embezzlement. He submitted that section 409 is fully applicable and it falls within prohibitory clause.
6. I have> considered submissions and have also gone through the case law cited by the learned counsel as well as record of the application.
7. In Tariq Bashir's case facts were that five unknown persons during dacoity were alleged to have taken away jewllary, cash and prize bond. Petitioners were arrested and stolen property was recovered from them. They were released on bail by High Court which bail was subsequently cancelled vide the impugned order. The honourable Supreme Court observed as under:-- "It is crystal clear that in bailable offences the grant of bail is right and not favour, whereas in non- bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. Divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (Punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example:--
(a) where there is likelihood of abscondence of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the offence being repeated if the accused is released on bail; and
(d) where the accused is a previous convict.
8. In Abid Khan's case alleged embezzlement had taken place between 2-10-2003 to 18-2-2004 and F.I.R. Was lodged on 26-5-2004. It was held by the Court that there was nothing on record indicating that show-cause notice was issued to accused before termination of service. High Court allowed the bail as the case was of further enquiry. Nadeem's and Muhammad Amin's cases are clearly distinguishable because in the first case accused was exonerated in the departmental enquiry and in second case accused was punished with reduction in pay in the domestic proceeding.
9. In present case learned DAG submitted that no show-cause notice was issued to the accused for embezzlement of amount and according to him reason was that the accused proceeded on leave and did not come back and instead of coming back submitted his resignation. Learned counsel further submitted that resignation has not yet been accepted. Therefore, it is quite distinguishable.
10. I think the fact that cannot be lost sight of is that employee in this case instead of coming back and joining service and clearing his name in domestic proceedings submitted his resignation.
Offence falls in prohibitory clause and conduct of employee in taking leave and then remaining absent does not go in his favour. In the order the Court below has referred to order in bail before arrest case where reasons were clearly stated. In it therefore speaking order. This bail application is therefore dismissed.