SH. AHMAD FAROOQ, J.---The petitioner/Muhammad Inam Ali seeks his pre-arrest bail in a case arising out of F.I.R. No.271 of 2010, dated 21-3-2010, registered in Police Station Gulberg, Lahore, under sections 420/408/468/471, P.P.C.
2. Succinctly, the prosecution story as narrated by the complainant, in the F.I.R., is that Muhammad Inam Ali/present petitioner got Rs.2,50,000 in hard cash from the accounts of the Company from Matiur-Rasul Cheema, Manager (Finance) through Zafar Butt/Officer of the Company on the pretext of making payment to one Muhammad Ilyas, for the printing of diaries and calendars of the new year. The complainant alleged that the present petitioner, instead of making payment to the said Malik Muhammad Ilyas, misappropriated the amount of Rs.2,50,000. The complainant further alleged that the present petitioner, during the tenure of his service, withdrew an amount of Rs.19,51,847 to meet the official expenses of the Company but subsequently, it transpired from the receipts and bills that the aforementioned amount was spent by the accused/present petitioner on purchase of garments, toys, medicines, in addition to making payment of bills of different Hotels.
The complainant also alleged that the present petitioner misused his office while being posted as Country General Manager and embezzled an amount of Rs.22,01,847 through cheating and forgery and guilty of committing criminal breach of trust.
3. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in this case by the complainant with mala fide intentions. He further, submitted that the petitioner, who was an outstanding officer of the Daewoo Company, developed rivalry with his seniors and subordinates and his relation became strained, when he wrote a letter to Mr. S.W. Son on 11-12-2009, wherein he pointed out some unnecessary expenditure. The petitioner submitted his resignation on 13-1-2010 but the same was not accepted and a show-cause notice was issued to him on 16-1- 2010, which was duly contested by the present petitioner vide his reply dated 18-1-2010, and an inquiry was initiated against the present petitioner, by the Chief Executive of the Daewoo Company.
Learned counsel for the petitioner further submitted that the administration of Daewoo Company got registered six F.I.Rs. Against the present petitioner, out of which four have been cancelled and the remaining two are being investigated. He stated that civil litigation between the parties remained pending and finally, a compromise was effected between the parties on 19-2-2010, whereby all the disputes regarding, the finances were settled and not only the civil suit was withdrawn but also an F.I.R. No.161 of 2010, dated 12-2-2010, registered in Police Station Gulberg, Lahore, under section 408, P.P.C. Was got cancelled. Learned counsel for the petitioner argued that in an earlier investigation, the present petitioner was declared innocent and as such, the commission of the alleged offence by the present petitioner is highly doubtful. He maintained that no offence, as alleged in the F.I.R., is made out against the present petitioner. Lastly, he argued that the case against the present petitioner entirely depends upon the documentary evidence, which is already in possession of the Investigating Officer and his arrest would not serve any purpose.
4. Conversely, the learned counsel for the complainant as well as the learned Deputy Prosecutor- General opposed the instant petition on the plea that the petitioner has misappropriated a huge amount of the complainant/Daewoo Company. They further submitted that the agreement, arrived at between the parties on 19-2-2010, was only in respect of a loan, which the present petitioner had obtained for purchase of a house. They contended that the agreement, dated 19-2- 2010, could not restrict the right of the present complainant of taking legal proceedings for commission of an offence according to section 28 of the Contract Act, 1872. They asserted that the petitioner could not take the benefit of section 403, Cr.P.C. As he was never tried or acquitted for the same offence. Finally, they argued that the recovery of the amount, alleged to have been misappropriated, by the present petitioner, is to be effected and the petitioner is not entitled to the extraordinary concession of pre-arrest bail.
5. Arguments heard. Record perused.
6. Admittedly, the present petitioner had served Daewoo Express Bus Service Limited, Lahore, as Country General Manager for a long time and he was dismissed from service on 28-1-2010.
Thereafter, the officials of the Daewoo Bus Service lodged six F.I.Rs. Against the present petitioner, out of which four have been cancelled. The parties also filed civil suits against each other, which have been withdrawn as a result of a compromise, dated 19-2-2010. No doubt, according to section 28 of the Contract Act, 1872, an agreement in restraint of legal proceedings is void, but in the instant case, the complainant had levelled similar allegations against the present petitioner, which were agitated in the earlier F.I.Rs., particularly, F.I.R. No.161 of 2010, dated 12-2-2010, registered in Police Station Gulberg, Lahore, under sections 408, P.P.C. In F.I.R. No.161 of 2010, there was a specific allegation of misappropriation/embezzlement of a huge amount through misuse of credit cards. It is worth consideration that the abovementioned F.I.R. No.161 of 2010, dated 12-2-2010, was got cancelled as a result of Agreement dated 19-2-2010. In these circumstances, the chances of the false implication of the present petitioner in the instant case by the complainant cannot be ruled out.
7. Secondly, no date and time of the alleged embezzlement of the I amount in question is mentioned in the F.I.R. There is an unexplained delay of more than one and a half months in the registration of case, as the accounts were checked on 5-2-2010 and the F.I.R. Was lodged on 21-3- 2010. The accounts, which were verified/checked on 5-2-2010, relate to the financial years starting from 2008 to 2010. Prima facie, the dispute between the parties is of Rendition of Accounts, which required detailed scrutiny of record. Even otherwise, the entire case of the prosecution is dependant on documentary evidence, which has already been collected by Investigating Officer.
8. Thirdly, the amounts were admittedly withdrawn by the present petitioner after verifications of the vouchers and credit card bills by the other officers dealing with the financial matters of the Daewoo Express Bus Service, namely, Mati-ur-Rasool Cheema, Shafqat Elahi, Muhammad Nauman Munir and Younglee, who have also been found guilty by the Investigating Officer for commission of an offence, falling under section 109, P.P.C., but the present complainant did not raise any objection to the grant of pre-arrest bail to the said four co-accused of the present petitioner as evident from order dated 3-8-2010, passed by the learned Additional Sessions Judge, Lahore. Hence, the commission of the alleged offence by the present petitioner is highly doubtful. It is also significant to observe that the present petitioner was declared innocent during an earlier investigation vide Police Diary No.6, dated 14-4-2010. Needless to mention here that benefit of doubt is to be given to an accused even at bail stage.
9. Admittedly, the offences falling within the mischief of sections 420/471, P.P.C. Are bailable, whereas the punishment of the offences, alleged to have been committed by the present petitioner, under sections 408/468, P.P.C., does not fall within the prohibitory clause of section 497(1), Cr.P.C. The grant of bail in such like cases is a rule and refusal an exception.
10. Finally, Mansoor Qamar, DSP, who is presently conducting investigation of this case, appeared in this Court, today, and categorically stated that he did not require the person of the present petitioner for any further investigation or recovery. Hence, the intended arrest of the present petitioner would not serve any purpose or advance the case of the prosecution except his humiliation and harassm ent at the hands of the police. Refusal of pre-arrest bail in the instant ease would tantamount to punishing the accused in advance. Bail before arrest is meant to protect the innocent citizens in the event of their involvement in criminal cases with mala fide intentions. Reliance is placed on Dr. Muhammad Akbar Pasha v. The State (2010 M LD 1096).
11. In arriving at the aforementioned conclusions, I rely on the judgments reported as Muhammad Gulzar v. The State (2005 YLR 1645), Saeed Ahmad v. The State (1995 SCM R 170), Noor Muhammad v. The State (1990 PCr.LJ 732), Hayat Khan and 3 others v. The State and another (2009 YLR 560), Bashir Ahmad v. Muhammad Yunus and others (1990 PCr.LJ 1035) and Yameen v. The State (1994 PCr.LJ 924).
12. The upshot of above discussion and observations is that the petitioner is entitled to the concession of pre-arrest bail. Resultantly, the instant pre-arrest bail petition, filed by Muhammad Inam Ali, is accepted and interim bail already granted to him is confirmed subject to submission of fresh bail bond in the sum of Rs. 2,00,000 with two sureties, in the like account to the satisfaction of the learned trial Court.