2011 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

This is 2nd bail petition filed by the petitioner before this Court. The first one bearing Criminal Miscellaneous No.11712-B of 2010 was dismissed as withdrawn in terms of order dated 4-11-2010.

2. By means of instant petition, Noraz Akbar, petitioner has sought for his post--arrest bail in case F.I.R. No.837, dated 9-9-2010, offence under section 406, P.P.C., registered at Police Station Ghalib Market, Lahore.

3. Allegation against the petitioner, in brief, as per contents of F.I,R., is that he along with other co-accused committed criminal breach of trust and thereby caused huge loss to the complainant amounting to Rs.14,55,456.

4. At the outset learned counsel for the petitioner when questioned that what is fresh ground available with the petitioner as his earlier such bail application already stands dismissed, learned counsel states that the earlier bail application was not dismissed on merits and the instant application is to be considered as his first bail petition. To substantiate his version, learned counsel for the petitioner has placed reliance on Muhammad Riaz v. The State (2002 SCMR 184). Learned counsel argues that although name of the petitioner figures in the crime report, however, there is a delay of nine months, which has not been explained. Learned counsel further states that even bare perusal of the crime report does not disclose the commission of offence under section 406, P.P.C. Learned counsel vehemently contends that the matter is purely of civil nature, which has intentionally been given the colour of criminal liability. Learned counsel further argues that there is no direct evidence against the petitioner connecting him with the commission of offence. Learned counsel lastly argues that case against the petitioner does not attract prohibition contained in section 497(1), Cr.P.C, therefore, he is entitled to the concession of bail.

5. As against above, learned D.P.-G assisted by learned counsel for the complainant has opposed this petition with vehemence. It is contended by both of them that in such like cases, the parties try their level best to sort out the matter and as the matter could not be resolved, therefore, the case was registered. It is also argued that the petitioner is named in the F.I.R. with specific role, who committed criminal breach of trust and thereby caused huge loss to the complainant. Learned counsel for the complainant further submits that actually the petitioner is member of an organized gang, who deprive the innocent persons from their belongings. Learned counsel lastly argues that the learned trial court while discussing each and every aspect of the case in detail dismissed the bail petition of the, petitioner, therefore, no exception can be made to the well-reasoned order of the learned trial Court.

6. I have given my anxious consideration to the arguments advanced by learned counsel for the petitioner, learned counsel for the complainant, as well as learned D.P.-G., and have gone through the record with their able assistance.

7. Firstly I dilate upon the question that whether the instant bail petition being second petition on the subject, can be given weight in absence of any fresh ground, which is pre-requisite for filing such petition. There is no cavil to this proposition that there is no fresh ground available with the petitioner and the grounds taken herein were already available with the petitioner at the time of filing of first bail petition. Therefore, the same is not maintainable in view of ratio decidendi of august Supreme Court of Pakistan in the case of Gul Nawaz It alias Gul Mowaz and 2 others v. The State (1970 SCMR 667); wherein Mr. Justice Hamoodur Rahman; the then Hon'ble Chief Justice, being author of the order had held as under; "The High Court was in our view also right in holding that repeated applications for bail on the same facts did not lie in the High Court."

8. Now question arises that whether the instant petition can be termed as second bail petition or the first one. Having much regard for the case law cited by learned counsel for the petitioner, I may submit here that bare perusal of the order dated 4-11-2010, passed in Criminal Miscellaneous No.11712-13 of 2010; whereby the petitioner's earlier bail petition was dismissed, reflects that after arguing the case at some length, learned counsel for the petitioner requested to withdraw the petition, which in the interest of justice was allowed. Had the petitioner very good case, learned counsel for the petitioner might have not withdrawn the same after arguing at some length.

9. On merits, if case of the petitioner is analyzed, admittedly from the receipts available on the record, it is established that the complainant has been deprived of a huge amount. The name of the petitioner figures in the F.I.R. along with Muhammad Awais, his co-accused, who is still fugitive from law and while making tentative assessment of the facts, his case is co-extensive with Muhammad Awais, co-accused.

10. So far as contention of learned counsel for the petitioner that he is entitled to the grant of bail as the offence against him does not attract prohibition contained in subsection (1) of section 497, Cr.P.C. is concerned, it is well settled by now that none can claim bail as a matter of right in non-bailable offences even though the same does not fall under the prohibitory clause of section 497, Cr.P.C. Reliance is placed on the case of Muhammad Siddique v. Imtiaz Begum and 2 others (2002 SCMR 442).

11. For the foregoing reasons I am persuaded to hold that the petitioner, in no way, has made out a case for his enlargement on post-arrest bail. Resultantly, the instant petition being devoid of force is hereby dismissed.

12. Before parting with this order I may observe here that the findings made hereinabove are tentative in nature, which are only meant for disposal of the petition in hand and the same shall not have any bar on anybody's case at any stage. N.H.Q./N-116/L Bail refused.