2013 PLP 1678 (YLR)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Apprehending her arrest at the hands of police, through the instant petition, the petitioner seeks her pre-arrest bail in case F.I.R. No.577, dated 18-5-2011, offence under section 406, P.P.C., registered with Police Station, Civil Lines, Gujranwala.

2. Allegation against the petitioner, in brief, as per contents of the crime report is that she along with her co-accused while committing criminal breach of trust grabbed an amount of Rs.8,25,000 from the complainant under the pretext of commencing joint Cement Agency.

3. Learned counsel for the petitioner contends that the petitioner is innocent and has falsely been roped in the instant case by the complainant against the actual facts and circumstances in connivance with the local police with mala fides. It is argued that no specific date and time of alleged occurrence has been mentioned in the crime report, rather the same is mentioned in the crime report as 'unknown'. It is argued that during the course of two successive investigations i.e. one carried out by local police and the second one carried out by Range Crime, the petitioner was found innocent, but subsequently during the course of third investigation carried out by the SSP (Investigation), the petitioner was held guilty only on the basis of special oath (Nian) which is not permissible under the law. Learned counsel submits that the offence alleged against the petitioner is not made out from the contents of the crime report. Adds that the dispute between the parties is of civil nature and civil litigation is also going on between the parties, but the same has been culminated into criminal liability by the complainant. Moreover, the offence alleged against the petitioner does not attract the prohibition contained in section 497(1), Cr.P.C. It is argued that in such circumstances, sending the petitioner behind the bars would not serve any useful purpose and requested for grant of relief sought for by means of instant petition.

4. Contrarily, learned Deputy Prosecutor-General assisted by learned counsel for the complainant has vehemently opposed this petition. It is argued that the petitioner is named in the crime report with specific allegation of committing criminal breach of trust. Moreover, it is pre-arrest bail and the same can be granted sparingly.

5. Arguments advanced from both sides have been heard. Record available on file perused.

6. There is no denial to this fact that the petitioner is named in the F.I.R., but I am afraid this Court has to see from the facts and circumstances whether case against the petitioner to the extent of grant of relief prayed for is made out or not. No specific date and time of alleged occurrence has been mentioned in the crime report, rather the same contains as 'unknown'. The offence alleged against the petitioner does not attract the prohibition contained in section 497(1), Cr.P.C. Even during the course of two successive investigations i.e. one carried out the local police as well as Range Crime, the petitioner was found innocent, but subsequently she was found guilty during the course of investigation carried out by SSP (Investigation) merely on the basis of special oath (Nian) which is not permissible under the law. Civil litigation is also going on between the parties. Even otherwise the petitioner is an educationalist who did her masters in Islamic Studies and is presently teaching in a local college as Lecturer, as such, she is a respectable law abiding citizen. In such circumstances, if the petitioner is not allowed the extraordinary relief of pre-arrest bail, the same would certainly cause damage to the repute of the petitioner. When confronted, learned Deputy Prosecutor-General frankly submits that keeping in view of dictum of law laid down by the august Supreme Court of Pakistan in the case of Shahid Imran v. The State, and others (2011 SCMR 1614), prima facie provisions of offence under sections 405, P.P.C. are not attracted in the instant case. It is a settled principle of law that the Court can even look into and evaluate the mala fides from the facts and circumstances of the case, which apparently is oozing in this case from the facts and circumstances. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97) and Syed Muhammad Firdaus and others v. The State (2005 SCMR 784). In such peculiar circumstances sending the petitioner behind the bars would serve no useful purpose.

7. For the foregoing facts and circumstances, this Court is persuaded to accept this petition. Resultantly by allowing this petition, ad interim bail already granted to the petitioner in terms of order dated 18-3-2013 is hereby confirmed subject to her furnishing fresh bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of learned trial court. MWA/S-39/L Bail confirmed.