' The petitioner through the present petition seeks bail in the case F.I.R. No,187 of 1999, dated 24-7- 1999 under section 420/468/471/378/109/413, P.P.C. At Police Station Mahmood Kot, Muzaffargarh.
2. The petitioner is a carriage contractor who was responsible for transporting POL products manufactured by Pakistan State Oil (PSO) to various destinations in Pakistan. While deciding the present bail application it is neither necessary nor appropriate to discuss in detail the facts of the case lest the trial be prejudiced by any observation made in this order. Suffice it, however, to state that the available evidence gathered by the police indicates that 46 trucks belonging to the petitioner, which were used for transporting the POL products, did not reach their destinations. The case against the petitioner, as set out in the F.I.R. Is that he committed criminal breach of trust by misappropriating or by converting to his own use, the products entrusted to him for carriage. The fact that 46 trucks used by the petitioner as carriage contractor for PSO did not reach their destinations, is not disputed even by the petitioner.
3. Learned counsel for the petitioner, however, argued that the petitioner could not be held criminally liable for any criminal acts of his servants such as the drivers and the clerks employed by him. He also pointed out that a case F.I.R. No,327 of 1998 was lodged by the petitioner at Police Station Qureshi under section 406/408, P.P.C. Against two employees of the petitioner, namely Khayal Badshah and Ghulam Shabbir. This was meant to show that the petitioner himself was innocent and it was these two employees who were involved in criminal breach of trust in respect of P.S.O.'s products.
4. Learned counsel, to support his contention, also made reference to the carriage contract executed between P.S.O. And the petitioner. He, in particular, adverted to clauses (13) to (19) of the said contract to argue that if there was any pilferage resulting in short delivery or non-delivery of POL products carried by the petitioner, the matter was to be resolved as per terms of the aforesaid contract. On this basis it was argued that only civil liability would attach to the petitioner even if some of his employees could be saddled with criminal responsibility. Learned counsel also referred to undertaking given by the petitioner to PSO to settle the loss suffered by PSO by making payment to it of a sum of Rs,1,25,00,000. This submission was made to urge that in these circumstances, the petitioner should be enlarged on bail. Finally, it was contended by the learned counsel for the petitioner that the offence under section 405/406, P.P.C. Attracted a maximum punishment of seven years and as such, did not fall within the prohibitory clause of section 497, Cr.P.C. As such relying on the case titled Tariq Bashir v. The State PLD 1995 SC 34 he argued that the petitioner should be allowed bail.
5. I have considered the contentions of learned counsel for the petitioner and have also heard the learned Assistant Advocate-General and Malik Faiz Rasool Rajwana, Advocate on behalf of the complainant and Mr. Yaqoob Ayyaz Siddique, Advocate, on behalf of the State. I have also considered below the various judgments cited by learned counsel for the petitioner.
6. The facts in the present case need to be examined tentatively at this stage with the sole object of deciding the question of bail. What I find significant in the present case is that the petitioner even if his contentions are accepted, proceeded only against two of his employees namely, Ghulam Shabbir and Khayal Badshah in respect of certain consignments by lodging F.I.R. 327 of 1998 against them. In view of the fact that it was not just one or two consignments which were in question but a number as large as 46 where the P.O.L. Products entrusted to the petitioner had not reached their destinations, it is, prima facie, difficult to accept the petitioner's contention that he was not involved in the misappropriation and conversion of such products. It is also worth-noting that the case F.I.R. No, 327 of 1998 lodged against Ghulam Shabbir and Khayal Badshah was found to be false and was cancelled.
7. I will now consider the precedents cited by the petitioner's learned counsel. The case of Chief Commercial Manager v. The General Manager, Ranco Trading Corporation 1976 PCr.LJ 22 related to just one consignment entrusted to a Railway company. Thirteen cartons comprised in the said consignment had been damaged in transit. It was held by the Court that the Chief Commercial Manager could not be held criminally liable even if an officer of the Railways, subordinate to him, had in fact, committed an offence under section 407, P.P.C. The other case titled Muhammad Yanoob Gorowara v. Mir Muhammad Hassan and others PLD 1962 Kar. 742 does not support the petitioner. The law laid down in the said precedent clearly provide that the principal can be held criminally liable for the acts of an agent/servant if there is any connivance between the two. The other two cases cited above namely, Ch. Abdul Karim v the Crown and Shakir Hussain v. The State laid down law with which there can be no cavil. It is only the circumstances which would determine whether or not the provisions of sections 405 to 407, P.P.C. Are attracted. In any event, the said two precedents relate to decisions in appeal after a full trial and conviction of the accused. In the present proceedings, as noted above, only tentative determination has to be made. Prima facie, the large number of missing consignments and the extent of the short delivery would indicate that the petitioner was in the know of things and, as such, could be burdened with criminal liability under sections 405 to 407, P. P. C .
8. The case titled Shahid Ali v. The State 1986 PCr.LJ 400 was referred to by the learned counsel for the petitioner to argue that where an accused gave an undertaking m settle accounts with a complainant, he should be granted the concession of bail. The said precedent and the case of Tariq Bashir v. The State referred to above, however, are not to be followed indiscriminately. In the present case, it is to be noted that the proper and efficient delivery of POL products to various destinations in Pakistan constitutes an important activity necessary for sustaining the national economy and the general well-being of the public r t large. Where such economic activity and well-being is systematically undermined on such a large scale as alleged in the prescribed case it would not be proper for this Court to grant bail to the petitioner even though the offence with which he is charged is punishable with imprisonment of less than ten years. This case, in my opinion, falls within the exception referred to by the Honourable Supreme Court while laying down the general rule in Tariq Bashir's case (supra).
9. Learned counsel for the petitioner finally contended that one Waqar-ul-Hassan, who was an employee of PSO was dismissed by PSO on account of his connivance in misappropriating the POL products entrusted to the petitioner Noor-ul-Hassan. He stated that the said Waqar-ul-Hassan had fled the country. This may be so. However, I do not see how this circumstance helps the petitioner. The petitioner's case has to stand or fall on the basis of his own alleged guilt.
11. In view of the foregoing discussion, this bail application is dismissed. If the case against the petitioner proceeds to trial, the learned trial Court shall hear and decide the case uninfluenced by any observation made in this order.