ORDER SHEET
Cr Bail No.115 of 2012
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Order with signature of Judge
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1. For orders on MA No. 4730 of 2012
2. For hearing
17.07.2012
Mr. Nasir Ahmed, Advocate
Mr. Irshad Ali Kehar, D A G
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Applicant Naveed Kaleem seeks post arrest bail under sections 409, 420, 468, 471, 471-A PPC, in FIR No. 64 of 2011, registered at Boat Basin Police Station, Karachi.
2. Relevant facts of the subject matter are that, instant case is outcome of Inquiry No. 93 of 2011, conducted by Federal Investigating Agency (FIA), commenced on the complaint of Syed Nasir Shehzad, Operation Manager, Bank Islam, Karachi; that applicant Naveed Kaleem misappropriated bank’s funds amounting to Rs.1,275,810/- by debiting parking account to the account of his old friend Nasir Habib Khan thereby he has committed offence of criminal breach of trust and cheating; case challaned; same is pending before the trial Court for adjudication.
3. Counsel for applicant contends that applicant is innocent, has been involved falsely due to enmity with complainant; whole case depends upon documents, which are in possession of prosecution and veracity of documents will be considered during trial; it is alleged that Bank funds were transferred to the account of Nasir Habib Khan old friend of the applicant but Nasir Habib was not joined in investigation as accomplice; this is a case of further inquiry; applicant has moved application against complainant much prior to the inquiry and FIR; stating therein that complainant alongwith Nasir Habib and one another person will commit fraud in bank; FIR is delayed about 8 months; no explanation is given in FIR.
4. Conversely, learned Deputy Attorney General argued that applicant has committed offence of breach of trust; being responsible employee has cheated Bank; offence is falling within the prohibitory clause of subsection (1) of section 497 Cr P C.
5. Heard learned counsel and DAG, perused relevant record and examined case law.
6. We have examined the case law relied upon by applicant counsel, in case of Naeem Qasim v. The State (2012 MLD 567), it is held, when cheque book of the complainant was in his locker as to how cheques reached the accused, had not been satisfactory explained, case of further inquiry (bail granted); in the case of Fazal Ellahi v. The State, it is held, accused were in custody last more than five months, investigation is complete; keeping accused in custody will not serve any purpose (bail granted); in case of Hussain Haqani v. The State (2000 P Cr L J 161), it is held that applicability of section 409 PPC to the case of accused could be determined by trial Court after recording evidence, documentary evidence on which the case was based already having been collected by the prosecution; same was not likely to be tampered with by accused (bail granted); in case of Sabir Hussain v. The State (1999 P Cr L J 958), it is held that accused admittedly had neither been entrusted with the property in question, nor he had domain over the same (bail granted).
After perusal of the record it reveals that allegation against the applicant is that he transferred amount of parking to the account of his old friend Nasir Habib Khan and used his cheque book, there is no allegation that any bogus account was opened, it is strange to notice that, as per prosecution cheque book of PW Nasir Habib was lying with the applicant, no satisfactory explanation is available on record and it is also not appealable to the prudent mind that Nasir Habib was not having knowledge about any transactions when prosecution has claimed Nasir Habib as old friend of applicant, but has not joined him in investigation as accomplice; admittedly FIR is delayed about eight months; no explanation is given in the FIR regarding the delay; which creates the doubt in prosecution case and it is settled law that benefit of doubt at the stage of bail can be considered in favour of the accused. The entire case is based on documentary evidence which has already been collected by the prosecution and there is no chance of tampering with the prosecution case.
As discussed above, the applicant’s case falls within the ambit of further inquiry, therefore, the applicant is entitled for post arrest bail.
7. We have granted bail to the applicant by our short order dated 17.07.2012 subject to his furnishing solvent surety in the sum of Rs.200,000/- (Rupees Two Lacs) and PR Bond in the like amount to the satisfaction of the trial Court and these are the detailed reasons for the same. However, the observation and discussion made herein is tentative in nature and will not prejudice either party
Judge
Judge
Samie ++