Naeem Khan vs The State and others

ORDER

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 07.07.2021 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant post-arrest bail in case registered vide FIR No. 05 dated 27.02.2013 under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 at Police Station FIA/ACC, District Lahore, in the interest of safe administration of criminal justice.

2. Briefly stated the allegation against the petitioner is that he being a Treasury Clerk and while posted at Postal Office, Pattoki, has embezzled an amount of Rs.8,67,440/- Alter his arrest, he applied for his post-arrest bail before the learned Trial Court as also before the learned High Court but he could not get the same relief. Hence, this petition seeking leave to appeal.

3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances of this case. Contends that the allegation against the petitioner is of embezzling an, amount of Rs.8,67,440/- but there is no documentary evidence to connect the petitioner with the commission of the crime. Contends that the case of the petitioner clearly falls with the ambit of further inquiry and when the investigation is complete and the petitioner is no more required for further investigation, he cannot be kept behind the bars for an indefinite period especially when the allegedly embezzled amount is not connected with tangible material on the record.

4. On the other hand, learned Law Officer contended that the petitioner has been specifically nominated in the crime report with the specific allegation of causing loss to the public exchequer and an amount of Rs.87,000/- has been recovered from him and 'coupled with the fact that he remained fugitive from law for a considerable period of time, it shows that he has committed the of fence, therefore, he does not deserve any leniency by this Court.

5. We have heard learned counsel for the parties at some length and have perused the record with their assistance.

As per the contents of the crime report, the allegation levelled against the petitioner is that he misappropriated an amount of Rs.8,67,440/- from the public exchequer . We have specifically asked the learned Law Officer and the Investigating Officer to show us any documentary evidence in support of the accusation levelled against the petitioner but they admitted that up-till now there is no such documentary evidence detected during investigation.

Mere on the basis of bald accusation as alleged, the liberty of a person cannot be curtailed, which is a precious right guaranteed under the Constitution of Islamic Republic of Pakistan, 1973. So far as the argument of learned Law Officer that an amount of Rs.87000/- was recovered from the petitioner , which according to him shows that he had committed the crime is concerned, at this stage it cannot be said with exactitude as to whether the amount recovered from the petitioner was part of the amount allegedly embezzled, which aspect can be determined by the learned Trial Court after recording of evidence. We have been informed that the investigation is complete and the petitioner is no more required for further inquiry . So far as the argument of learned Law Officer that the petitioner remained absconder for a considerable period of time, which according to him, shows his guilty mind is concerned, it is now settled that an accused can be granted bail in the case of the petitioner is otherwise made out on its and mere absconsion would not come in his way. Reliance is placed on Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373 ), Muhammad Tasaweer v. Hafiz Zulkarnain (PLD 2009 SC 53) and Mitho Pitafai v. State (2009 SCMR 299) wherein this court has held that mere absconsion is not a conclusive proof of guilt of an accused person. The value of absconsion, therefore, depends on the facts of each case and bail can be granted if an accused has good case for bail on merits and mere absconsion would not depriv e him bail. In this view of the matter , it is the Trial Court who after recording of evidence will decide about the guilt or otherwise of the petitioner and until then the petitioner cannot be kept behind the bars for indefinite period. Keeping in view all the facts and circumstances, the case of the petitioner squarely falls within the purview of section 497(2), Cr.P.C. entitling for further inquiry into his guilt.

6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order dated 29.07.2021. The petitioner is admitted to bail subject to his furnishing ball bonds in the sum of Rs.200,000/- with two sureties in the like amount to the satisfaction of learned Trial Court.