Sister TERESA YOUNAS vs WASEEM PERVEZ and another

1. ' MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner herein seeks the cancellation of bail granted to accused-respondent No,1, Waseem Pervez, by the learned Additional Sessions Judge-VI, Peshawar in case F.I.R. No,239 dated 5-6-2010, Police Station Gulberg, Peshawar, registered under section 408, P.P.C.

2. The allegation against the accused-respondent, as per contents of the F.I.R., is that he, being Accountant in Saint Michael's High School, embezzled an amount of Rs,9,74,776 during the period from 1-4-2008 to 31-3-2010, as per audit report of the Chartered Accountant. The physical verification of record conducted by the Principal/petitioner further disclosed that Rs,1,28,549.58 for the month of April, 2010 and Rs,36,000 for the month of May, 2010 were also embezzled by the accused. Previously, the accused had also embezzled an amount of Rs,8,37,800 in the year 2008, but had furnished an undertaking dated 23-7-2008 for its return.

2. ' The learned counsel for petitioner vehemently argued that the learned ASJ has granted bail to the accused respondent in haste, as neither any notice was given to the complainant nor the record of the case was properly consulted. Thus, the bail granting order on the face of it is arbitrary, capricious and fanciful. The learned counsel for the petitioner by placing reliance on the case Muhammad Sharif v. Shafqat Hussain and others (1999 SCMR 338) and Shaikh Haji Ali Muhammad v. Muhammad Yousuf Zaman and 2 others (PLD 1985 Karachi 694), prayed that the impugned order be recalled.

3. ' As against that the learned counsel for the accused/respondent submitted that trial in the case has commenced since long and because of the non-appearance of the complainant, trial in the case has not yet been concluded. He further submitted that notice to the complainant at the time of consideration of bail application would only be necessary in hurt cases as was held by this Court in the case of Muhammad Ashraf v. Duarriyaman and another (PLD 1993 Peshawar 151), whereas in such like cases, notice to complainant is not the requirement of law. The accused/respondent after his release on bail has neither misused the concession of bail nor has done any other act which could call for recall of the bail granting order. The application moved by the learned counsel for petitioner is not maintainable and is liable to dismissal.

4. ' The learned Addl. Advocate-General by supporting the bail granting order submitted that there is nothing on the record in the shape of proper inquiry fixing the liability on the accused. So, at present, it is yet to be determined whether the accused respondent alone was responsible for the alleged embezzlement or not.

5. ' Learned counsel for the parties as well as the learned A.A.-G. For the State were heard and record of the case was perused.

6. The main contention of the learned counsel for complainant/petitioner was that the bail granting order was illegal, perverse and against the record. The bail was granted in haste without consulting the record. No notice of hearing was given to the complainant. The learned counsel for the petitioner did not refer to any other ground like misuse of the concession of bail or tampering with the record of the case. The perusal of the bail granting order and the file would reveal that no notice to the as given by the learned Addl. Sessions Judge, but SPP for the State was very much there and was heard. The case of Shaikh Haji Ali Muhammad (PLD 1985 Karachi 694) supra relied upon by the learned counsel for petitioner in this regard that notice to the complainant in case of section 408, P.P.C. Is also mandatory, to my opinion, is not applicable to the circumstances of the present case as in the said case the complainant or the State were not put on notice and the Judicial Magistrate arbitrarily released the accused on bail. The circumstances referred to in the case justified the cancellation of bail as the order for grant of bail was arbitrary, capricious and fanciful. However notice to the complainant is not requirement of the law for grant or refusal of bail except in the cases of hurt and qatl-e-amd and this too was held necessary after Criminal Law (Second Amendment) Ordinance, 1990 which remained in force by virtue of Criminal Law (Amendment Ordinance XCIX of 1995) and finally it was made part of the statute vide Act-II of 1997.

7. In this regard first ever judgment was given by this Court in the case of Muhammad Ashraf v.

8. Duarriyaman and another (PLD 1993 Peshawar 151) wherein it was held that notice to the victim of hurt and LRs/complainant of the qatl-e-amd would be necessary for the purpose of bail. In this view of the matter, notice to the complainant in other cases is not necessary and no such amendment has been made in section 497, Cr.P.C. So, this cannot be claimed as of right. However, if a complainant himself wants to contest then too, there is no such legal bar denying him such right. Reliance can be placed on the case of Said Rehman and another v. The State and 3 others (2001 YLR 2056).

9. ' As far as involvement of the accused/respondent in the commission of offence is concerned, it would not be proper to discuss the merits of the case as trial of the accused is in progress and his involvement as such requires to be proved by the prosecution at the trial. If involvement of the accused-respondent is proved on the record then he could be punished according to severity of his crime. His bail already granted cannot be cancelled in the circumstances specially when other grounds for cancellation of bail have not been raised.

10. ' This petition, being without substance, is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.