ABDUL HAY UZ ZAFAR vs THE STATE- Respondent
This matter concerns a petition for post-arrest bail filed by an accused public servant charged under Section 409 of the Pakistan Penal Code 1860 for the alleged misappropriation of government funds. The core legal questions were whether the large amount involved and the potential for life imprisonment under the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 necessitated the refusal of bail, and whether the ongoing investigation, specifically the pending handwriting expert report, justified continued incarceration. The Court held that the mere magnitude of the misappropriated amount is not sufficient grounds to refuse bail, particularly when the investigation is substantially complete and the evidence is documentary, rendering tampering unlikely. The Court further clarified that the prohibitory clause of Section 497 does not mandate refusal of bail based solely on the maximum potential sentence; rather, the Court must consider the punishment likely to be awarded in the specific circumstances. Consequently, the Court granted bail, establishing that bail is the rule and refusal is the exception, provided there is no risk of abscondence or evidence tampering.
- Does the magnitude of the amount involved in a criminal case automatically preclude the grant of bail?
- Is the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 triggered solely by the maximum sentence provided by law?
- Should a court consider the likely punishment to be awarded rather than the maximum sentence when applying the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Section 409, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
By this order I propose to dispose of Criminal Misc. No. 1335-B/82 which has arisen out of the order of Special Judge Anti-Corruption, Multan at Sahiwal dated 26th June, 1982 dismissing the bail plea of the petitioner in a case F.I.R. No. 89, dated 25th May, 1982 under section 409, P.P.C. Police Station Sadar Sahiwal. According to the prosecution the petitioner while performing his official duties as Senior Clerk-Cashier in the office of Extra --Assistant Director, Agriculture, Sahiwal prepared bogus bills for salary and thus misappropriated Government money to the tune of Rs. 1,83,800,20. The petitioner was arrested on 6th June, 1982. He remained on remand to police custody for 14 days and thereafter he was committed to judicial lock--up. It is stated that the handwriting of the petitioner alongwith the forged bills have been sent to the Handwriting Expert to verify if the questioned salary bills were prepared by the petitioner. The report of the handwriting expert is still awaited, and also sanction for his prosecution is yet to be obtained.
2. I have heard the learned counsel for the petitioner, as well as for the State. It is contended on behalf of the petitioner that the evidence collected against the petitioner so far is inconclusive inasmuch as the report of the handwriting expert is still awaited. Next contended that the petitioner is in Jail for the last more than five months, and it will still cause more delay in obtaining the sanction for the prosecution and thus the trial of the petitioner would be delayed indefinitely. He therefore, concluded that petitioner is a public servant and is entitled to the grant of bail because there is no likelihood that he would tamper with the evidence or would abscond.
3. As against this learned counsel for the State submits that huge amount is involved in the case and also offence being punishable with life imprisonment, the case of the petitioner falls within the prohibitory clause of section 497, Cr. P.C. Therefore, he does not deserve the concession of bail.
4. I have considered the arguments of the learned counsel for both) the parties and find that the amount involved is of course sufficiently large and this fact by itself would be no ground for refusing bail particularly when the investigation is complete, except that the report of the hand-- writing expert is awaited. There is some force in the contention of the learned counsel that the proposed evidence to be adduced at the trial comprised documentary evidence and tampering with the same is no possible. As far as the question of prohibition contained in subsection (1) of section 497 is concerned, a Court is not supposed to keep in view only the maximum sentence provided under relevant law rather it is to be see what punishment is likely to be awarded ultimately to an accused in particular circumstances of the case. To grant the bail is rule and t refuse is an exception. The petitioner is admittedly a public servant an there is no likelihood of his abscondence.
5. For the reasons stated above I am inclined to allow this petition. The petitioner is directed to be released on bail subject to his furnishing security in the sum of Rs. 50,000 with two sureties in the like amount t the satisfaction of Assistant Commissioner Duty Magistrate, Sahiwal.
Ball granted.
Cited by 17 cases
- FURRUKH SHAHZAD And Another vs THE STATE And Another 2011 YLR 809
- AMANULLAH vs THE STATE and another 2009 YLR 260
- NASRULLAH KHAN vs THE STATE 2008 P Cr. L J 778
- UMAR DIN LODHI vs THE STATE 2002 YLR 2764
- WASI HAIDER vs THE STATE 2002 MLD 1659
- CHUTTAL KHAN vs THE STATE 2001 P Cr. L J 166
- SAMUEL TENNENT vs THE STATE through Assistant Director, F.I.A. (C.B.C.), Karachi 2000 YLR 1
- JAFFAR MAHMAND vs THE STATE 1997 P Cr. L J 1827
- ABDULLAH SHAH vs THE STATE 1997 P Cr. L J 910
- RAZZAK BABA vs THE STATE 1996 P Cr. L J 1530
- MAJEED AHMED vs THE STATE 1996 MLD 1650
- RAFIQ vs THE STATE 1989 P Cr. L J 143
- ABDUL SATTAR Versus THE STATE 1988 PCRLJ 1467
- RIAZ Versus THE STATE 1988 MLD 906
- MUHAMMAD HANEEF vs THE STATE- 1986 P Cr. L J 2576
- SHAHADAT ALI vs THE STATE 1985 P Cr. L J 1
- SAMI NASIR HUSSAIN vs THE STATE 1984 P Cr. L J 1553