ZULFIQAR ALI vs AKMAL KHAN
The petitioner, Zulfiqar Ali, sought post-arrest bail in F.I.R. No. 35 of 2012 registered under Section 409 of the Pakistan Penal Code 1860 read with Section 5(2) of the Prevention of Corruption Act 1947 by Police Station FIA Peshawar, on allegations of misappropriating sale proceeds from a Utility Store amounting to Rs. 4,48,604. The core legal question was whether the petitioner's case fell within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, given that responsibility for bank deposits and accounts remained disputed and subject to a civil compromise negotiation. The Peshawar High Court held that since the prosecution could not explicitly show that depositing daily sale proceeds was exclusively the duty of the accused rather than the cashier, and given the ongoing settlement proceedings, the case warranted further inquiry. The court allowed the bail petition, laying down the principle that bail should not be refused lightly in cases where financial responsibility is ambiguous and subject to reconciliation.
- Whether bail can be granted when the exact responsibility for financial deposits and accounts is yet to be determined?
- Does a civil settlement and negotiation between the parties regarding accounts make a criminal case one of further inquiry?
- Is bail to be refused lightly where rules do not explicitly establish the sole duty of the accused for financial misappropriation?
- Section 409, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
ORDER
' DOST MUHAMMAD KHAN, C.J.---Petitioner, Zulfiqar Ali, seeks bail in case F.I.R. No, 35/2012 dated 31- 10-2012 registered for crimes under section 409 P.P.C. Read with section 5(2) PC Act by Police Station FIA Peshawar.
' Arguments heard and record perused.
2. The case against the accused-petitioner is that while Incharge of Utility Store at Madain District Swat, he received certain items from the Head Office against proper receipts and signed the debt card/bill and also took the same on the Stock Register, however, when these items were sold out to the consumers, the sale proceeds thereof were not deposited in full in the relevant head of account of the Commercial Bank and in this way it has been alleged that he misappropriated government money to the tune of Rs,4,48,604.
3. The FIA initially commenced enquiry under the relevant provisions of law, however,- the accused-petitioner lodged a civil suit before the Civil Court wherein, during the proceedings before the Civil Court, the FIA Prosecutor and the accused both entered into a compromise and through a joint statement, given to the Court, they opted for settlement through negotiation and rendition of account but till date rendition of account and verification of record could not take place when in the meanwhile the case was registered against the accused-petitioner.
4. When the learned counsel appearing on behalf of the Utility Store was asked that whether it was the duty of the accused-petitioner under the law to make daily deposit in the bank or under the said rules it was the exclusive responsibility of the head cashier or cashier to do so, he was unable to answer the said query. When the internal audit and daily / weekly check and monitoring system is in place because the Zonal Manager and his staff conduct surprise checking / raids and verify the store with the record / stock register, cash register and deposit slips made in the bank then, how this aspect was not detected because the referred embezzlement is spreading over more than a year period and because the parties have decided not to initiate criminal proceedings and to settle the account through mutual negotiation, this aspect strongly suggests that the FIA was of the view that it is a matter of rectification of accounts/record and not a deliberate embezzlement.
Apart from the above fact, responsibility, at the moment and on the available record, could not be fixed explicitly on the accused because the learned counsel for Utility Store could not produce any Rule to show that it was the duty of the accused alone to make the deposit in the bank and not of the cashier thus, case of the petitioner is one of further enquiry, where bail cannot be refused lightly.
' Accordingly, this petition for grant of bail is allowed and the petitioner is directed to be released on bail provided he furnishes bail bond in the sum of rupees two lac (Rs, 2,00,000) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.