2012 PLP 1492 (MLD)

MUHAMMAD ANWAARUL HAQ, J.

Through this petition, Shakeel Ahmad petitioner has sought pre-arrest bail in case F.I.R. No.13, dated 5-1-2012, registered at Police Station Badami Bagh, Lahore in respect of an offence under section 406, P.P.C.

2. Learned counsel for the petitioner contends that there is an inordinate delay of about seventeen months in lodging of the F.I.R.; that present F.I.R. is a counterblast of F.I.R. No.137 of 2011 registered on the statement of wife of real brother of the petitioner under sections 365-B and 380, P.P.C. and in this backdrop case against the petitioner has falsely been registered with mala fide intention of the complainant only to humiliate, blackmail and pressurize him; that there is no documentary evidence whatsoever available on the record to prove the assertions mentioned in the F.I.R. and to connect the petitioner with the commission of the alleged offence; that the petitioner has no previous criminal record and that in the circumstances, application of offence under section 406, P.P.C. is one of further inquiry into the guilt of the petitioner.

3. Conversely, learned Law Officer assisted by learned counsel for the complainant vehemently opposing this bail application contends that pre-arrest bail is an extra-ordinary relief and cannot be granted just in routine without the proof of malice on the part of the complainant or of the police; that the delay in lodging of the F.I.R. per se is not a ground to enlarge the petitioner on pre-arrest bail; that petitioner is specifically nominated in the F.I.R., who has deprived the complainant from a huge amount of Rs.5,00,000, that is still to be recovered from him and it is a clear case of criminal breach of trust; that the petitioner was found fully involved during the investigation of this case. Learned counsel for the complainant adds that in the previous F.I.R. referred above by the learned counsel for the petitioner, complainant party has already been declared innocent in that case and the petitioner has failed to substantiate any mala fide of the complainant to falsely implicate him in this case. Lastly contends that the petitioner has committed a heinous offence, hence, he is not entitled for the extra-ordinary relief of pre-arrest bail.

4. Heard. Record perused.

5. Be that as it may, there is an inordinate delay of about seventeen months in lodging of the F.I.R. that has not been sufficiently explained by the prosecution. As per averments of the F.I.R. admittedly the allegation of the complainant regarding handing over of such a huge amount to the petitioner is not supported by any document on record, the application of offence under section 406, P.P.C. against the petitioner is prima-facie, a matter of further inquiry and probe, therefore, I do not find any justifiable reason to send him behind the bars. In the cases where arrest of the accused is not a necessary requirement of the Investigating Agency, sending the petitioner behind the bars only for the reason that he may be released on bail after his arrest is unjustified. I respectfully refer the case of Muhammad Aslam v. The State 2000 YLR 1341 wherein this Court has observed as under:-- "The petitioner appears to have a reasonably good case for post-arrest bail on the basis of suddenness of the occurrence, lack of premeditation on the part of the accused party, divergent findings of different Investigating Officers of this case and admission of a co-accused to post-arrest bail. Thus, it shall have a colour of ludicrousness if he is sent behind the bars for a few days by dismissing his application for pre-arrest bail so as to enable him to come out of jail after a few days on post-arrest bail. I for one would not like to be a party to such a mockery of the system."

6. Keeping in view the principle laid down referred above, without further commenting upon the merits of the case, to avoid any prejudice to either side, this petition is accepted and the ad interim pre-arrest bail already allowed to the petitioner by this Court vide order dated 2-2-2012 is hereby confirmed subject to his furnishing fresh bail bond in the sum of Rs.100,000 (Rupees one hundred thousand only) with on surety in the like amount to the satisfaction of the learned trial Court/Area Magistrate within a period of fifteen days from today.

7. It is, however, clarified that observations made herein are just tentative in nature and strictly confined to the disposal of this bail petition. M.W.A./S-38/L Pre-arrest bail confirmed.