Manager vs SHAFIQUE AHMED and 4 others

ORDER

Through this petition under Section 497(5), Cr.P.C., Cool Industries-petitioner has sought cancellation of bail before arrest granted to Respondents No, 1 to 4 by the learned Additional Sessions Judge, Lahore vide order dated 22.6.2009, in case FIR No, 642 dated 31.8.2006, registered under Sections 419/381/420/468/471/109/34 PPC at Police Station. Hanjerwal, District Lahore- on the written application of Mian Javed Iqbal, Manager Recovery Officer, Cool 'Industries, (Pvt.), Limited, Hanjerwal, Multan Road, Lahore.

2. The brief allegation as per contents of FIR is that Respondent No, 1 was an employee of the petitioner as a Sales Manager, who embezzled a sum of Rs, 26,00,000/- in connivance with Respondents No, 2 to 4 and all of them are the real brothers.

3. Learned counsel for the petitioner contends that on 8.11.2006, matter was settled for payment of an amount of Rs, 26,00,000/- and undertaking was given by respondents for payment of the said amount but the same has not been complied with. According to the learned counsel for the- petitioner it has`been held in PLD 1976 Lahore 580, and 2007 P.Cr.L.J. 1492, that bail granted on undertaking is liable to be recalled in case the condition is not fulfilled; that even-otherwise, there was no case for bail before arrest as there was no enmity or mala fide on' the part of the petitioner-complainant or the police for their false-implication and bail may be cancelled.

4. On the other -held, learned counsel for Respondents No, 1 to 4 opposes the bail application' on the ground that bail before arrest was allowed on 8.11.2006 and cannot be cancelled after such a long delay; that respondents had already made payment of Rs, 11,00,000/- whereafter an amount of Rs, 10,00,000/- was also paid and now nothing is due from the respondents as per bank statement, hence, the instant petition is liable to be dismissed; that the suit for rendition of accounts has been decided in favour of the respondents; that the dispute was of civil nature, which has been converted into criminal offence; that no case is made' out for cancellation of bail as there is no allegation for misuse of concession of bail against the respondents, who are regularly appearing in the Court, but the petitioner-prosecution is reluctant to produce the evidence.

5. I have heard the learned counsel for the parties and also perused the record with due care and caution. From the perusal of the documents which have been shown by the learned counsel for the respondents it is prima facie found that the payment as claimed by the respondents was made on 6.6.2006, 26.5.2006 and 3.6.2006. Learned counsel for the petitioner has rightly pointed out that on 8.11.2006 at the time of allowing bail before arrest of Respondents No, 1 to 4 admitted that an amount of Rs, 26,00,000/- was payable by them and about an amount of Rs, 10,00,000/- was still outstanding against the respondents, who have failed to make payment as per commitment made by them at the rate of Rs, 1,00,000/- per month through cheques within 7 days. It was specifically mentioned that even if one of the cheque was dishonoured the complainant-petitioner would be at liberty to apply for cancellation of bail. The respondents have failed to show the documents to prove that the said amount as per commitment made before this Court was ever paid after the grant of bail on 8.11.2006 while the receipts shown by the respondents for the payment of the amount are much. prior thereto, which cannot be considered towards the amount committed to be paid at the time of allowing pre-arrest bail to the respondents. The learned counsel for the petitioner has rightly relied upon the case law referred to above wherein it has been held that if any commitment is made before the Court, it becomes the orders of the Court and non-fulfilment thereof would amount to contempt of Court and the defaulter is not entitled for the grant of bail having come to the Court with unclean hands. The relevant portion of PLD 1976 Lahore 580, is reproduced as under:-- "2. An undertaking given to the Court by a party or his counsel has exactly the same force as an order made or an injunction granted by a Court; once an undertaking is given in the Court by a party or on his behalf by his counsel he becomes bound to fulfill the same. After the Court has sanctioned a particular course of action or inaction according to the statement of a party, the party places himself in a perilous situation if later he commits a breach of his undertaking, and such a conduct on his party amounts to contempt of Court. ****"

Similarly, in 2007, P.Cr.L.J. 1492, [Lahore], it was held as under: "* Respondent No, 1 had the audacity to renege on his solemn undertaking which he had given before a Court of competent jurisdiction and had thereby procured the benefit viz. prompting the petitioner in the application under Sections 22-A, 22-B, Cr.P.C. not to press his petition for registration of criminal case. Grant of bail to the respondent in such circumstances amounted to giving him benefit of his own deception. Needless to say that grant of bail is a discretion which cannot be exercised in favour of a person who approaches the Court with smeared hands. *"

6. After the perusal of the bail granting order, it is found that Khalil Ahmad and Saleem Ahmed respondents were responsible for making payment of Rs, 1,00,000/- per month through cheque, but they have failed to fulfill the undertaking given by them. They were allowed pre-arrest bail conditionally and having made a default they are not entitled to remain on pre-arrest bail, which is only meant to protect the innocent citizens, who are found to have been falsely involved for some ulterior motive, which is lacking in the present case. I am not in agreement with the learned counsel that bail cannot be cancelled as the trial has commended because in Muhammad Sharif Vs. Shafqat Hussain alias Shaukat and another (1999 SCM R 338), it has been held by the August Supreme Court that no hard and fast rule can be laid down that bail should not be cancelled merely because the trial has commenced or is likely to commence. The question to be determined would be as to whether a person was entitled to the grant of bail. In the present case to the extent of Respondents No, 3 and 4, namely, Khalil Ahmad and Saleem Ahmad respectively, I am satisfied that they are not entitled to remain on bail, which is cancelled by allowing this petition partly and they shall be taken into custody and treated in accordance with law. So far as the case of Shafique Ahmad and Shakeel Ahmad Respondents No, 1 and 2 is concerned, it appears that they had nothing to do with the default made by the others respondents in the payment of the balance amount and to their extent this petition having no merit is partly dismissed.