2005 P Cr (PLP)

Sh. Javaid Sarfraz for the State. Date of hearing: 25th march, 2004. Asghar Ali son of Haji Fateh Muhammad seeks his post‑arrest bail in case F.I.R. No.161 of 2003, dated 26‑4‑2003 registered under sections 17/22 of the Emigration Ordinance, 1979 at Police Station F. I. A., Lahore.

2. The allegation as disclosed in the F.I.R. against the petitioner was that he had deprived the complainant Muhammad Abbas Khokhar son of Haji Muhammad Yaqoob of Rs.2,04,000 along with his passport and identity card, etc. on the pretext of sending him to Norway. It is alleged in the F.I.R. that he failed to live upto his promise to send him abroad and had also failed to return Rs.1,68,000 and returned only Rs.36,000.

3. After having been unsuccessful in his attempt to get bail from the learned Special Judge (Central) Lahore, the petitioner approached this Court by way of Criminal Miscellaneous No.5384/B of 2003. However, he withdrew the said application on 21‑10‑2003 stating that he would await the filing of the challan. On the said occasion the learned Deputy Attorney‑General who had appeared on behalf of the F.I.A. had extended assurance that the challan would be submitted within the next month. While disposing of the said application it was observed by this Court that if no tangible progress was made in this case the learned counsel for the petitioner could repeat his application before appropriate forum. The petitioner thereafter moved the learned trial Court for his bail on a variety of grounds including the fact that no progress had been made in the investigation and additionally that he was a sick and infirm person within the meanings of first proviso to section 497, Cr.P.C. However, his application did not find favour with the learned Special Judge (Central), Lahore which was dismissed vide order, dated 9‑1‑2004. Hence this application.

4. The learned counsel for the petitioner in support of his plea for bail has argued that the investigation had not progressed even by a single step ever since the assurance extended by the learned Law Officer on 21‑10‑2003 and even the Ministry of Labour, Manpower and Overseas Pakistan Division had itself come to the conclusion that the case of the petitioner called for further probe and the matter has been sent to the F.I.A. Lahore for reinvestigation; that the petitioner is languishing in jail for the last ten months and the Investigating Agency has absolutely failed to do anything. He finally argued that the petitioner is a sick and infirm person and according to the medical report which had been invited by this Court from the Medical Superintendent, Services Hospital the petitioner is suffering from uncontrolled diabetes. The Medical Superintendent has further observed that the patient needs regular monitoring of blood sugar and adjustment of medicines in jail.

5. Sheikh Javaid Sarfraz, the learned Standing Counsel for the Federal Government, as also Mr. Tariq Javaid, the learned counsel for the complainant opposed the grant of bail to the petitioner. The learned Standing Counsel argued that the interim challan has been submitted and that the final challan would be submitted after reinvestigation in the matter as directed by the Ministry. He also added that the new Investigating Officer had taken over the investigation and that the same would be finalized in the shortest possible time.

6. I have considered the arguments of the learned counsel for the parties at length. During arguments I asked the Investigating Officer to show to the Court as to what steps had been taken in the investigation after 21‑10‑2003 when the previous bail application had been withdrawn. However, to my utter astonishment I have noticed that no Zimni exists on the file of the investigation after 7‑10‑2003, meaning thereby that ‑no investigation whatsoever has been held in the case for the last almost six months and the file is lying absolutely dormant. Even the basic contention of the petitioner that it was one Rana Sohail who had issued the cheque has not been got verified by the Investigating Officer although it was a simple exercise and the same could have been verified from the bank easily. It appears that the prosecution is not interested in the investigation at all and is just buying time by one pretext or the other with a view to ensuring that the petitioner is kept in jail as a measure of punishment.

7. I would not like to dwell further on the merits of the case lest it may prejudice the case of the prosecution. Suffice it to say that the petitioner cannot be retained in custody indefinitely as a measure of punishment. Resultantly, I allow this petition and admit the petitioner to bail in the sum of Rs.1,50,000 with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. The observations made hereinabove are tentative in nature and will not affect the course of trial. H.B.T./A‑287/L Bail granted.