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Criminal Miscellaneous No. 2182‑B of 1981, decided op 12th August, 1981,

‑‑‑‑S. 497‑Bail‑Petitioner public servant as such his absconsion not apprehended‑State not showing any apprehension of tamper ing with evidence‑Petitioner in jail and submission of challan not known‑Alleged misappropriated bags recovered in toto and further detention of not any use‑Bail allowed in circumstances‑Penal Code (XLV of 1860), S. 409.

‑‑---S. 497‑Bail ‑ Embezzlement of huge property, held, not by itself a ground for refusal of bail nor bail be withheld as punishment‑Penal Code (XLV of 1860), S. 409.

Ijaz Akhtar v. The State 1978 S C M R 64 and Manzoor and 4 others v. The State P L D 1972 S C 81 rel.

Ijaz Hussain Batalvi for Petitioner.

Muhammad Rafi for the State.

Date of hearing : 12th August, 1981

This is an application for bail on behalf of Agha Talat Mahmood in a case under section 409, P. P. C. registered at Police Station, Raiwind Saddar vide F. I. R. No. 6, dated 16th June, 1981.

The prosecution case is that the petitioner was posted as Food Inspector at Sarai Mughal Centre. He was entrusted with 50 bales of gunny bags in his capacity of a public servant but he committed the breach of trust in respect of that property by misappropriating the same.

2. Learned counsel for the petitioner submits that there are no reasonable grounds for believing that the petitioner has committed an offence punishable under section 409, P. P. C. He argues that the impor tant ingredients of the offence of breach of trust, i.e. the entrustment and misappropriation having not been proved, the matter requires further inquiry.

3. Learned counsel appearing for the State has opposed this bail petition. He submits that

(i) the alleged offence is serious one

(ii) the property worth Rs. 2,55,000 was misappropriated by the petitioner; and

(iii) the fifty bales of gunny bags having been recovered from the peti tioner, he is not entitled to the privilege of bail.

4. After hearing the arguments advanced by the learned counsel for the parties, I find :‑.

(i) that the petitioner is a public servant and, as such, there is no apprehension of his absconsion ;

(ii) that the learned State counsel has not shown any apprehension of tampering with the evidence by the petitioner ;

(iii) that the petitioner is in jail since 28th June, .1981 and it is no known as to when the challan would be submitted ;

(iv) that 50 bales of gunny bags which were allegedly misappropriated have been recovered in toto, further detention of the petitioner would not serve any useful purpose;

(v) that there is no denying that the property is worth Rs. 2,55,00n but the mere fact that the property embezzled was huge by itself is no ground for the refusal of bail as held in Ijaz Akhtar v. The State (1978 S C M R 64);

(vi) that bail may not be withheld as a punishment as reported in Monzoor and four others v. The State (P L D 1972 S C 81) wherein it was observed that "It is important to remember that bail is not to be t withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have commit ted offences punishable with death or transportation, unless reason, able grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him but no satisfactory reparation can be offered to an innocent mar for his unjustified incarceration at any stage of the case albeit his acquittal in the long run";

(vii) that the same property which was allegedly entrusted to the petitioner has been recovered from his possession within a few months of the alleged entrustment, the question whether it amounts to a criminal misappropriation or not needs serious consideration.

For the foregoing reasons, I am of the opinion that the matter needs further inquiry and it is a fit case for the grant of bail. The petitioner is allowed bail in the sum of Rs. 50,000 (rupees fifty thousand) with one surety in the like amount to the satisfaction of A. C. Saddar, Lahore.

M.Y.M. Bail granted.

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