2013 P Cr (PLP)

IQBAL HAMEED-UR-REHMAN, C.J.

Petitioner Khalil Ahmed son of Shafiq Ahmed seeks pre-arrest bail in case F.I.R. No.632 of 2011, dated 25-9-2011 registered under sections 406/34, P.P.C. at Police Station Shalimar, Islamabad.

2. The instant pre-arrest bail petition was remanded by the august Supreme Court of Pakistan vide order dated 7-8-2012 for its decision afresh on merits.

3. Briefly, the story as narrated in the F.I.R. is that the complainant is Chief Executive of ELC Acetone (Pvt.) Ltd. and on 15-8-2008, ELC Acetone (Pvt.) Ltd. entered into an agreement with Telenor (Pvt.) Ltd. for maintenance of basic transmission station telecom and supply of diesel and to this effect, Telenor Pakistan gave ELC Acetone (Pvt.) Ltd. 200 PSO fleet cards and every card comprised of 5000 Ltrs of diesel. The petitioner introduced co-accused Ahmar Kamal and Abdullah as his consultant and convinced him to deliver PSO cards to Abdullah and accordingly, on different dates complainant gave PSO cards to Abdullah, who procured 11,73,141 Ltrs of diesel but, only supplied 8,77,648 Ltrs of diesel and in this misappropriation co-accused Ahmar Kamal and Khalil Ahmad were also involved. The petitioner, co-accused Abdullah and Ahmar Kamal caused crores of rupees of loss to the company. Hence, the instant case.

4. Learned counsel for the petitioner has contended that there is a delay of more than two and a half years in lodging of F.I.R.; that the contents of the F.I.R. do not fulfil ingredients of section 406, P.P.C. as the entrustment of property has not been made to the petitioner therefore, offence under section 406, P.P.C. does not attract to the case of the petitioner; that compromise has been effected between the complainant and the main accused Abdullah; that neither the compromise deed (Mark-A) nor the civil suit filed by co-accused Ahmar Kamal against the complainant and the present petitioner show any such allegation as levelled in the F.I.R.; that there is no audit report regarding investment of the company, corroborating the contents of the F.I.R.; that in fact the complainant wanted to get transferred the shares of the company in his name, as such mala fide on the part of the complainant to entangle the petitioner in the instant case is apparent; that the petitioner is previous non-convict; that co-accused Ahmar Kamal has been granted bail on 12-6-2012 by this Court. Learned counsel has relied upon the cases of Mudassar Javaid v. The State (2007 MLD 1201), Ghulam Rasool v. The State and another (2011 YLR 1909 [Lahore]) and Bilal Ahmad v. The State (2007 PCr.LJ 1500 [Lahore]).

5. Learned counsel for the complainant has vehemently controverted the arguments advanced by the learned counsel for the petitioner and contended that it is a pre-arrest bail and the whole arguments addressed by the petitioner's counsel go into the deeper appreciation of the evidence which is not warranted under the law at bail stage; that along with section 406, P.P.C. section 34, P.P.C. is also added, as such, all the accused including the petitioner are equally responsible for the commission of offence; that the petitioner is nominated in the F.I.R. with specific role of trapping the complainant for issuance of PSO Fleet Cards to co-accused Abdullah; that the petitioner has been playing hide and seek with the courts and his conduct is not reliable, as such, he is not entitled to the extra-ordinary concession of pre-arrest bail; that there is every likelihood of petitioner's absconsion in case his pre-arrest bail is confirmed; that so far the petitioner has not joined the investigation; that due to the conduct of the petitioner the investigation of the case is not being concluded. Learned counsel for the complainant has prayed for dismissal of petitioner's application for pre-arrest bail while relying upon the cases of Irfan Saeed v. The State (2007 YLR 1290), Muhammad Akram v. The State (2007 YLR 1287) and Muhammad Anwar Butt and others v. The State (2007 PCr.LJ 544).

6. Learned Deputy Attorney-General has contended that the petitioner is required by the local police for conducting investigation. He has relied upon the case of Malik Muhammad Nawaz Khan v. The State and others (1997 PCr.LJ 390).

7. Arguments of learned counsel for the petitioner as well as learned counsel for the complainant and learned Deputy Attorney-General heard, record perused.

8. Tentative assessment of record reveals that the petitioner is nominated in the F.I.R. with specific role of trapping the complainant to issue PSO cards to his co-accused Abdullah for the supply of diesel, who allegedly obtained 11,73,141 Ltrs of diesel and supplied only 8,77,648 Ltrs of diesel, as such, the company has suffered huge loss of crores of rupees. Mala fide on the part of police as well as the complainant is pre-requisite for grant of extraordinary concession of pre-arrest bail to the petitioner but nothing has been brought on record which can establish that there exists any animosity/malice on the part of the complainant or the prosecution for false implication of the petitioner in the instant case. The prosecution witnesses have so far stood by their statements made before the police under section 161, Cr.P.C. fully implicating the petitioner with the commission of alleged offence. The complainant in the instant F.I.R. has made specific allegation not only against the co-accused but also against the petitioner of having fully connived with the co-accused Abdullah with the common intention of misappropriation of the diesel in order to cause huge loss to the company, as such. Section 34, P.P.C. has also been added and in this regard the petitioner has been fully implicated by all the prosecution witnesses, on account of which sufficient evidence is available on the file against the petitioner, as such, person of the petitioner is still required by the police for further investigation. Moreover, recovery is still to be effected, in this regard it has been the consistent view of the Superior Courts that the accused does not deserve relief of pre-arrest bail when recovery is to be effected. Reliance in this regard is placed upon the case of Abdul Ghaffar v. The State (2003 YLR 2757).

9. The grant of pre-arrest bail is considered to be an extra-ordinary concessionary relief afforded to the accused persons but in exercising such discretionary relief the conduct of the accused is also to be taken into consideration. The instant case had been registered nearly a year ago i.e. on 25-9-2011 and up till now the investigation of the case could not proceed mainly on account of the conduct of the petitioner.

10. The petitioner has still not joined the investigation. In such eventuality investigation is being throttled on account of the conduct of the petitioner and is being unnecessarily delayed and in such circumstances the Superior Courts had held that exercise of discretionary relief of pre-arrest bail being extra ordinary concessionary relief cannot be extended to the accused. In this regard I am fortified by the case of Irfan Saeed v. The State (2007 YLR 1290) and Muhammad Akram v. The State (2007 YLR 1287).

11. The petitioner is also playing hide and seek with the Courts, firstly he had obtained pre-arrest bail from Sessions Court, Islamabad and failed to appear, consequently his bail application was dismissed for non-prosecution. Thereafter, again the petitioner had moved pre-arrest bail before the Court of first instance, the same had also been dismissed. The petitioner then approached this Court and after obtaining ad interim pre-arrest bail by this Court failed to appear before this Court for confirmation and his counsel at that time had apprised the Court that he was not aware about the whereabouts of the petitioner. Subsequently the petitioner again filed second pre-arrest bail before this Court with the plea that the petitioner could not earlier appear before this Court in Criminal Miscellaneous Petition No.297-B of 2012 on account of backbone problem. The said plea taken by the petitioner was held by this Court to be an afterthought and based on mala fide and the said pre-arrest bail moved through Criminal Miscellaneous Petition No.339-B of 2012 was also dismissed. In the circumstances, taking the same into account i.e. the above conduct of the petitioner, it is quite apparent that the petitioner had been very successful in frustrating the investigation for nearly one year by repeatedly obtaining ad interim pre-arrest bail from the Court of first instance as well as from this Court.

12. In the above perspective, the instant application is dismissed and ad interim pre-arrest bail already granted to the petitioner is withdrawn. MWA/125/Isl. Bail recalled.