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Criminal Miscellaneous No. 3646/B of 1972, decided on 9th February 1973.

‑‑‑‑‑ Ss. 497 & 498‑Bail before arrest‑‑Persons accused of non‑bailable offences may be admitted to bail before arrest only in extraordinary circumstances‑Petitioner, accused of illegally disposing of firm's goods and misappropriating sale proceeds, running in lass of rupees---- Petitioner yet to be interrogated by Police for obtaining information about disposal of property and persons to whom it was disposed of--- Order allowing petitioner interim bail earlier re‑called, in circum stances ‑Penal Code (XLV of 1860), Ss. 406, 408, 409, 420, 468 & 471.‑[Bail].

Khalid Ramdey and A. Waheed for Petitioner.

M. Sadiq Hayat Lodhi for the State.

Date of hearing 17th February 1973.

A case under sections 406, 408, 409. 420, 468 and 471, P. P. C. was registered at Police Station, Gawalmandi in the city of Lahore, against Muhammad Bashir Siddique, petitioner, who happened to be at one time the Manager of the Lahore Branch of the Master Rubber and Tyre Company Limited with its head office in Karachi, on the allegation that he was guilty of embezzlement of stocks and funds of the Company during the course of his employment as its Manager.

2. The petitioner submitted an application for bail before arrest alleging that his services were terminated on the 25th of November 1972, and that although the instances of embezzlement of stocks and funds of the Company had been allegedly unearthed by the 7th of December 1972, yet the report with the police was lodged only on the 13th of December 1972 with no explanation whatsoever as to the delay of six days. It was also alleged that the Company got a false case registered against the petitioner, because he had exposed its illegal acts and malpractices. The case came up for hearing on the 23rd of December 1972, when the petitioner was admitted to interim bail with notice to the State.

2‑A. I have heard the counsel for the parties.

3. Muhammad Samiullah Khan, General Manager of the said Company has also filed an application (Criminal Miscellaneous No. 237‑8 or 1.973) for cancellation of the interim bail granted to the petitioner. I have heard his counsel as well.

4. It is contended on behalf of the State, and also by the learned counsel for Muhammad Samiullah Khan, that audit of that relevant books of the Company's Branch in Lahore had continued till the 12th of December 1972 and by that time it was found that the stocks shown in the books of account of the Lahore Branch of the Company were short by Rs. 1,77,154.94; that the, petitioner should have had cash in hand of Rs. 74,186.35 which he did not account for, and thus the petitioner had been guilty of criminal breach of trust for Rs. 2,51,341.26. It is further contended that they have subse quently found receipt books showing that the petitioner had sold stock and received Rs. 2,37,25 2.50 for which there was no entry in the books of account. The receipt book was produced and the receipts are purported to have been issued by the petitioner. It is also argued that the investigating officer has received the counter‑foils of the receipts from different concerns showing that the petitioner had received Ra. 62,012.50, but the receipt book for those items was not available nor were the receipts shown in the books of account. The counterfoils were placed before rite and they were purported to have been signed by the petitioner. According to the investigation, the petitioner has misappropriated Rs. 5,16,879.91.

5. It is not denied by the petitioner that he has been the Branch Manager of the Master Rubber & Tyre Company Limited, but the learned counsel appearing on his behalf contends that the petitioner had been sending the money by Bank Drafts to Mr. Zia Malik, the Factory Manager in Karachi and Mr. Mushtaq Sharif, the Cashier. The payment, it was stated on behalf of the respondent, was not reflected in the books of account.

6. Photostats of certain documents have also been placed on record of Criminal Miscellaneous No. 237‑B of 1973 (application of cancellation of bail) to allege that the petitioner has admitted to have appropriated to his own use the funds of the Company. The petitioner, on the other hand, alleges that the documents were got executed under duress. The question whether or not these documents are genuine, and whether he has been guilty of the offences alleged against him cannot be gone into in these proceedings for bail before arrest. The case of the State is that the Police will not be able to effect any recovery unless the petitioner is arrested.

7. The fact remains that there is an allegation against the petitioner of having misappropriated an amount of RR. 5,16,879.91 and the investigation is yet to be completed. There is a difference between an application for bail before arrest and an application for bail after the person has been taken in police custody it is only in extraordinary circumstances that a person may be admitted to bail before arrest in a cognizable case. Learned counsel for the State submits that the person of the petitioner is necessary to obtain information about the disposal of the property of the Company because if it is in possession of some other person it will be a stolen property within the meaning of section 410, P. P. C.

8. It has not been shown to me that the police had an ulterior motive to falsely implicate him. Most of the offences alleged against the petitioner are cognizable and non‑bailable.

9. In the above circumstances, I find no justification to confirm m earlier order dated the 23rd of December 1972, whereby the petitioner was admitted to interim bail, and dismiss his petition accordingly.

10. I would, however, like to make it clear that the circumstances which are to weigh with the Court in dealing with a case for bail before arrest are quite different front those which axe to be taken into account in a matter for bail after arrest, and if the petitioner moves an application for being enlarged on bail after be is arrested, the learned Magistrate will deal with the same on merits, without in any way being influenced by the fact that I have dismissed the petitioner's application for bail before arrest.

Petition dismissed.

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