The facts leading to the present application for bail are that applicant Tabbasum Ahmed Qureshi is facing trial before the learned Judicial Magistrate, Karachi (East) under sections 420, 421, 468, 470 and 471, P.P.C. Which has arisen out of F.1.R. No,750 of 1998 of Police Station Ferozabad, Karachi (East).
2. The brief facts of the prosecution case as disclosed in the F.1.R., lodged by Mian Muhammad Ali on 8-12-1998, are that complainant is running a motorcar show room under the name and style of Messrs Riaz Motors where the applicant was working as a clerk since last fourteen years and he was incharge of the booking of the cars. The complainant noticed that since many days some persons of different type used to visit him. Therefore, on 12-10-1998 complainant sent for the record from applicant Tabbasum Ahmed Qureshi and after scrutiny many irregularities were found therein. Record was not only incomplete but record of many vehicles was not available. It was also found that applicant changed the photostat copies of the identity cards in the documents of customers, who got booked vehicles and in their place appended the copies of the identity cards of other persons and got delivery of many vehicles from Suzuki Company. After recovering cash from them, without permission he was fraudulently giving vehicles to them and usurped the right of other customers and misappropriated the amount and uptil now the applicant has dishonestly misappropriated Rs,10,000,000. The applicant issued cheques to arious persons from his personal cheque book. The said cheques were not encashed. He had also misused the letterhead and stamp of the complainant without his consent.
3. The applicant applied for bail before the trial Court as well as before the learned Sessions Judge, Karachi (East) but both the Courts below declined his prayer for bail. The copy of the order of the trial Court has not been produced. The copy of the order of learned Sessions Judge, dated 13-1- 1999 has, however, been filed.
4. I have heard Mr. Shakeel Ahmed, learned counsel for the applicant and Mr. Muhammad Saleh Punhwar, learned counsel for the State.
5. The contentions of the learned counsel for the applicant that F.I.R. Was belated and now-a-days books of accounts are not maintained but record is maintained through computer, question of misappropriation, therefore, does not arise; that the offences with which applicant is charged are not punishable with death or imprisonment for life and that he is in custody since 23-12-1998 and further that the applicant is, therefore, entitled to bail are misconceived and devoid of force.
6. The perusal of record shows that complainant entrusted his business concern to the applicant, who committed the breach of trust being a servant. He committed embezzlement and misappropriated his, employer's money to the tune of Rs,10,000,000. No material has been placed on record from which it could be deduced that applicant was involved malafidely and or that the case is outcome of enmity. In every business concern accounts are not maintained by way of computer nor it is the case of defence. Even there is nothing on record which shows that account was maintained through computer and that the disc (floppy) of the same for the purpose of checking every day was supplied by the applicant to complainant. The applicant prepared forged receipts, sold the cars and deposited amount in his personal account. He issued cheques, which were dishonoured. The relevant cheque book was recovered from the possession .Of the applicant.
7. It is not a rule of law that in each and every case, which is not punishable with death, imprisonment for life or ten years bail must be granted to an accused without considering the "gravity of offence. If that would have been the intention of the Legislature then such an amendment would have been introduced in the law by the law-makers through legislation. The Courts cannot be oblivious to the material collected by the prosecution and after looking into it and making tentative assessm ent of evidence, if the Court comes to the conclusion that a prima facie case is made out Court can refuse bail even in cases which are not punishable with death, imprisonment for life or ten years.
8. The period of delay is only available to the applicant under proviso (3) to section 497, Cr.P.C. After one year subject to proviso (4) to section 497, Cr. P.0 .
9. It will also be pertinent to produce hereunder the operative part of the well reasoned impugned order of the learned Sessions Judge, Karachi (East) for the sake of ready reference:-- "I have gone through the material available before me. Allegations are that the accused has cheated different people and misappropriated the amount of about Rs, one crore. The witnesses examined by the police have fully implicated the accused in this case. Case is fresh one. I am, therefore, of the view that the trial Court had rightly rejected the bail application of the accused. I see no force in this bail application, which is accordingly, dismissed. However, I direct the trial Magistrate to dispose of the case on merits within 6 months under intimation to this Court."
10. The perusal of the above order shows that it is just and proper order and it does not suffer from any legal or factual infirmity. The learned Sessions Judge has rightly observed that it is a fresh case. Consequently, the direction given by the learned Sessions Judge to the trial Court that the case be concluded within a period of six months is quite appropriate and reasonable and I am in full agreement with the order of the learned Sessions Judge.
11. The cases M. Afzal v. The State 1994 PCr.LJ 994 and 1994 PCr.L.J 1293, which are relied upon by the learned counsel for the applicant are of no help to him as they are quite distinguishable from the facts and circumstances of the present case.
12. The upshot of the above discussion is that the case of applicant is covered by prohibitory clause of section 497, Cr.P.C. And as such he is not entitled to bail. Consequently his bail application stands dismissed.
13. Before parting with this matter I would like to make it clear that the observations made hereinabove are of tentative nature and the trial Court will not be influenced thereby in any manner at the time of final adjudication of the case and it will be free to conclude the case and arrive at its own independent findings on merits after evidence is adduced in the case.