Through the instant petition, petitioner (Muhammad Tahir Bashir) has prayed for post-arrest bail in F.I.R. No. 214, dated 12.06.2020, under Sections 408 and 41 1, PPC, registered at Police Station Lohi Bher , Islamabad.
2. Briefly , the allegations set-forth in the F.I.R. lodged by Respondent No. 2/complainant are that on 11.06.2020 at about 10:00 am, within the area of P,W.D, Punjab Cash and Carry the complainant had given Rs. 5 Million to the petitioner , who was Accountant in the said shop for deposit of same in Al-Meezan Bank but the petitioner did not deposit the same and fled away along with the said cash.
3. Learned counsel for the petitioner contends that no details of currency notes are mentioned in the FIR; that no witness from the public has been associated with the alleged recovery; that offence does not fall within the ambit of prohibitory , clause; that investigation is complete and that petitioner is no more required for further investigation, therefore, entitled to the concession of bail. Learned counsel placed reliance upon case laws reported as PLD 1995 SC 34, 2012 SCMR 573, 2002 SCMR 442, 2009 SCMR 1488 , 2012 YLR 1944 , 2011 MLD 1286 , 2010 YLR 1744 , 2009 MLD 614 .
4. On the other hand, learned State Coun sel assisted by learned counsel for the complainant argued that petitioner is specifically nominated in. the F.I.R.; recovery was also effected from his possession; mere fact that the offence does not fall within the ambit of prohibit ory clause is not sufficient to extend concession of bail; that sufficient incriminating material is available .on file, therefore, he is not entitled to the concession of bail. Learned counsel placed reliance upon case laws reported as 2017 P .Cr.L.J. Note 43, 2017 P .Cr.L.J. Note 127 and 2012 YLR 2748 .
5. Arguments heard, record perused.
6. The punishment provided for the offence under Section 408, PPC is up to seven years which does not fall within the ambit of prohibitory clause of Section 497, Cr.P.C. In such like case grant of bail is a rule and refusal is an exception. Reliance is placed upon 2011 SCMR 1708 , whereby the Hon'ble Apex Court alldwed bail in a case where the allegation against the accused was that he issued cheque of Rs. 20 Million which on presentation was dishonoured. The Hon'ble Apex Court observed that the case does not fall within the prohibitory clause of Section 497, Cr. PC and the concession of bail must be favourably considered and shoul d only be denied in exceptional cases.
7. Same principle has been reiterated by the Hon'ble Supreme Court of Pakistan in a recent judgment reported as "Muhammad Ramzan alias Jani vs. The State and others " (2020 SCMR 717) wherein it is held that when alleged offence is outside the prohibitory clause of Section 497, Cr.P.C., grant of bail is a rule and refusal is an exception.
8. The relationship of petitioner with the complainant appears to be that of master and servant and the petitioner was not more than a clerk or servant. The Hon'ble Peshawar High Court in identi cal situation, in Salah-ud-Din v.
The State (2018 P .Cr.L.J. Note 165) granted post arrest bail in of fence under Sections 408 and 409, PPC.
9. In another case titled Saeed Ammar Bin Ali Alvi v. The State and another (2011 MLD 1286 ), accused of Sections 408/381, PPC was allowed post arrest bail, where he was a proclaimed offender , trial was commenced and the accused was behind the bars for the last five months.
10. In the present case, petitioner is behind the bars since his arrest i.e. 18.06.2020. Investigation is complete and he is no more required for further probe. It is also matter of record that the petitioner retains no criminal record therefore, his further incarceration would serve no useful purpose.
11. The case laws relied upon by learned counsel for the complainant entail distinct facts and circumstances, therefore, do no extend any help to the complainant.
12. In view of above tentative assessment, the, petitioner is held entitled to the concession of pest arrest bail at this stage. Consequently , the instant criminal misc. petition is allowed petitioner is admitted to post-arrest bail subject to furnishing of bail bonds in the sum of Rs. 100,000/- (Rupees one hundred thousands) to the satisfaction of learned trial Court.
13. Needless to mention that this is tentative assessment for the purpose of this petition only, which shall not affect/influence trial of this case in any manner .