2010 PLP 1971 (MLD)

TUFAIL H. EBRAHIM, J.

F.I.R. 258 of 2010 was lodged at Police Station Preedy Saddar Town Karachi, on 1-3-2010 on complaint of Mr. Muhammad Ismail son of Abdul Rehman for registration of alleged offence under sections 420, 468, 469, 470 and 471, P.P.C. The case of the prosecution is that the complainant is an employee and deals in sales in Messrs United Mobiles (Company) who are the distributors of Nokia Mobile Phones in Pakistan. In November, 2009 the Company introduced a promotional scheme whereby retailers would be entitled to one free mobile phone for sale of 35 Nokia mobile phones bearing Model Numbers 1661, 1662 and 5030. Retailers were required to detach the lower portion of the warranty cards (coupon) as a proof of sale and the same was to be provided by the retailers to the Company through the whole-sellers to receive the prizes. That on 2-11-2009 one wholeseller Naveed Gaba of Gaba Electronics, on behalf of one retailer Ghulfam submitted 1750 coupons for claiming the prize. On this submission representative of the Company Farhan Memon doubted and after verification it was found that the same were forged. When Naveed Gaba was contacted in this respect, he informed that these coupons were given to them by one Gulfam (retailer) and when Gulfam was contacted he stated that the said coupons were given to him by one Muzzamil Riaz who is a representative/employee of IML which is a merchandizing company of Nokia. Similarly on the same day another wholeseller Farhan Khan ' Farooqui on behalf of one retailer Iqbal (Ahmed Raza Electronics) submitted 2250 coupons for claiming the prize. Similarly on enquiry by the Company it was found that the said coupons were forged. When Farhan. Khan Farooqi was contacted in this respect, he informed that these coupons were given to them by one Iqbal retailer and when Iqbal was contacted he stated that the said coupons were given to him by one Muzzamil Riaz. Further in the said F.I.R. it has been alleged that Muzzamil Riaz along with above named persons have played fraud and it was also alleged that Muzzamil and his companions have also committed forgery resulting in huge losses to the Company. The learned counsel of the applicant has argued that the application has been lodged for mala fide reasons to protect the company, its wholesellers and retailers have falsely filed this F.I.R. to humiliate the applicant, because he was an employee of IML a merchandising company of Nokia and the applicant was awarded shield by Nokia for his efforts and contribution to the business of Nokia, which was considered as direct confrontation to the business of the Company and its wholesellers and retailers as they did not want Nokia to come directly in Pakistan. Per learned counsel there has been a delay of about five months of the alleged incident and for which no cogent reason has been given and the benefit of doubt should go to the applicant. Per learned counsel there is no evidence that the forgery has been committed by the applicant, no recovery of any kind has been made from the applicant and it were the retailers who were entitled to the prize and not the applicant as the scheme was for the retailers. The learned counsel has lastly contended that the offences do not come in prohibitory clause of section 497 and confirmation of bail is a rule and refusal and exception and there are no extra ordinary circumstances that bail should not be confirmed. In support of his contentions the learned counsel has relied on the case of (i) Lal Muhammad Kalhoro and others v. The State as reported in 2007 SCMR 843, (ii) Muhammad Khalid v. The State as reported in 2010 MLD 63 and (iii) Sultan Ahmed Siddiqui and 3 others v. The State as reported in PLD 2010 Kar.

110. The learned counsel for the complainant and the learned APG have vehemently opposed the confirmation of bail to the applicant and have argued that there is no personal enmity between the applicant and the company and its wholesellers and its retailers and the delay in registration of F.I.R. was due to that permission had to be sought from Nokia. Per learned counsel the applicant being an employee of the merchandising company of Nokia was fully capable of committing the forgery and fraud within such short time as because of his employment must be fully aware in advance of the promotional scheme and two different retailers have pointed their fingers at the applicant as to the supply of the said coupons. The learned counsel for the complainant in support of his contentions has relied on the case of Ch. Waris Ali v. The State as reported in 2007 SCMR 1607, in the pre-arrest bail was cancelled which case is distinguishable to the present case, as recovery of licensed rifle of the petitioner was made from the place of incident showing involvement of the accused in the offence. I have heard the arguments of all the counsel. It may be pointed out that the applicant was earlier granted interim pre-arrest bail from the District and Sessions Judge South Karachi, which was recalled by IIIrd Additional Sessions Judge, Karachi South, vide order dated 28-4-2010. Thereafter the applicant approached this Court and sought interim pre-arrest bail which was granted on 29-4-2010. In the case of Lal Muhammad Kalhoro and others v. The State (2007 SCMR 843) it was held by the Hon'ble Supreme Court of Pakistan that: "No direct evidence was available with prosecution connecting applicants (Revenue Officials) with alleged forgery in Revenue Record or showing their involvement in grabbling of disputed land

Only evidence available on record in police papers against applicant consisted of vague statement of prosecution witnesses

Case against applicants was that of further enquiry

Two other accused having against them similar case had been admitted to pre-arrest bail

Applicants had joined investigation and got their statements recorded before Investigating Officer

Custody of applicants was not required for any investigation--Interim challan had been submitted

Commencement of trial in near future was not expected

Proposed departmental action against applicants would take sufficient time normally extending to years

Pre-arrest bail granted to applicant was confirmed." In the case of Muhammad Khalid v. The State (2010 MLD 63) it was held that:-- "There is no doubt that for the purpose of pre-arrest bail, the element of malice and ulterior motive has a special significance, but where bona fide of an accused and absence of any ulterior motive is not prima facie indicated on record, the question of malice and ulterior motive of the complainant, has also to be put in juxtaposition of the claim, facts and circumstances relevant to the ownership right of the accused as well. Hence, in the present case even without attributing the mala fide on the part of the complainant, the case of the petitioner can be considered for pre-arrest bail on the question of further inquiry, because if an accused petitioner is prima facie not liable for any unfair practice, it would not be just and proper that he may be handed over to police custody and subject to harassment and humiliation merely because the complainant has also suffered some embarrassment. If, for the purpose of pre-arrest bail, but malice has to be found out in the complaint, the absence of mala fide and ulterior motive on the part of the accused is also an important factor towards his right of bail, because if he was a bona fide purchaser and sells out the same property without any mens rea, he should not be blindly subjected to arrest and criminal liability only because he has not been able to allege or indicate mala fide against the complainant or the police. As to the allegation of malice the ratio of the cases of "Muhammad Ismail v. Ghaus Bakhsh and another" (1990 PCr.LJ 2013) and "Aftab Gul v. The State" (1989 PCr.LJ 1599) can also be relied upon." In the case of Sultan Ahmed Siddiqui and 3 others v. The State (PLD 2010 Kar. 110) it was held that:-- "Grant of pre-arrest bail is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of taw for ulterior motives; pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail; pre-arrest bail cannot be granted unless the person seeking if satisfies the conditions specified in subsection (2) section 497, Cr.P'.C. i.e., unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were in fact sufficient grounds warranting further inquiry into his guilt; in addition thereto accused must also show that his arrest was being sought for ulterior motive, particularly on the part of the police to cause irreparable humiliation to him and to disgrace and dishonour him; such a petitioner should further establish that he had-not done or suffered any act which would disentitle him to a discretionary relief in equity, e.g. he had no past criminal record or that he had not been fugitive at law; and in the absence of any reasonable and a justifiable cause, he must in the first instance approach the Court of first instance i.e. the Court of Session, before going to High Court for bail before arrest." In the case of Saeed Ahmed v. State, reported as 1995 SCMR 170 it was held that:-- "Bail was granted as there was no possibility of tampering with the evidence which is entirely documentary in nature and in possession of the prosecution." After hearing of both the counsel and perusing the material available on record with their able assistance and in view of the above cited reported cases I have come to the preliminary conclusion that there has been considerable delay in the lodging of F.I.R. and no cogent reason has been given for such long delay. There is no direct evidence or material recovered from the applicant as to the preparation of the forged coupons by the applicant as per the available record and the complaint has been lodged on hearsay and on alleged forged coupons submitted by wholesellers through retailers and not directly by the applicant. Prima facie the retailers were entitled to the benefit of the promotional scheme and not the applicant and mala fides cannot be overruled on the part of the complainant due to fear of business competition/rivalry in consequence of future expansion of activity of IML. The alleged evidence is based on documents which are in possession of the inquiry officer and there is no possibility of the applicant tampering the documentary evidence and the applicant is not in the position to influence the witnesses. For the above said reasons the case against the applicant/ accused is a fit case for further inquiry within the meaning of section 497(2), Cr.P.C., which entitles the applicant to the confirmation of bail. The interim bail already granted to applicant is confirmed on the same terms and conditions. The above discussion and findings are only tentative and preliminary in nature and should not influence in any manner the trial Court in arriving at a just and fair decision, based on the evidence to be adduced at trial. H.B.T./M-142/K Bail confirmed.