2011 PLP 686 (YLR)

MUHAMMAD YAWAR ALI, J.

Through this petition filed under section 498, Cr.P.C. the petitioner seeks pre-arrest bail in case F.I.R. No.21 of 2010, dated 9-1-2010 for offences under section 420/468/471/409, P.P.C. registered at Police Station Johar Town District Lahore.

2. The learned counsel for the petitioner submits that no amount was ever credited in the account of the petitioner. That the offence in question has been committed by one Raza Ali Athar who is shown to be a co-accused in the F.I.R. That said Raza Ali Athar who was previously working as Manager Standard Chartered Bank (Limited) Tufail Road Branch, Lahore had developed links with other members of the Staff working at Standard Chartered Bank Johar Town Branch, Lahore and he misappropriated the entire amount in connivance with them. That all the persons stated to have been defrauded were in fact doing business with Raza Ali Athar who was paying them profit periodically and it would be wrong to say that any of them had been defrauded by the petitioner. That there, is nothing on the record to connect the petitioner with the commission of offence. The petitioner is a highly qualified person and is a previous non-convict, hence entitled to the grant of bail.

3. The learned D.P.-G. while opposing the petition submits that the petitioner has been named in the F.I.R. and a specific role has been attributed to him. That there is no mala fide on the part of the police or the complainant to have registered a false and fabricated case against the petitioner. That the petitioner has been declared a proclaimed offender (P.O.) on 15-1-2010 and proceedings under sections 87 and 88, Cr.P.C. have already been initiated against him.

4. After adopting the arguments advanced by the learned D.P.G. the learned counsel for respondent No.2/complainant submits that there is documentary evidence available to connect the petitioner with the commission of offence. That the petitioner misappropriated a large amount of money from various persons as is evident from the contents of the F.I.R. That the complainant being a multi national bank would never register a false and fabricated case with mala fide intent against anyone.

5. There is nothing on the record to show that the F.I.R. has been registered against the petitioner with mala fide intent by the complainant who happens to be Regional Head Clerk of a multi national Bank. A perusal of record would show that large amount of money was handed over to the petitioner by the aggrieved persons for purpose of investment, however this amount was misappropriated by the petitioner and his co-accused Raza Ali Athar. The august Supreme Court of Pakistan in Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 has given a guideline with regard to the grant of pre-arrest bail to an accused person the operative part reads as follows:-- (a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives; (b) pre-arrest bail is not to be used as a substitute or as an alternative for post arrest bail; (c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions speci fied through subsection (2) of section 497 of Code of Criminal Procedure i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact sufficient grounds, warranting further inquiry into his guilt; (d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motives, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him; (e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive from law; and finally that; (f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance, approach the Court of first instance i.e. the Court of Sessions before petitioning the High Court for the purpose."

6. Pre-arrest bail is neither a substitute nor an alternative for post arrest bail. An accused besides establishing existence of good grounds for release on bail also has to show that his arrest is being sought for ulterior motives in order to humiliate and dishonour him. In this case the petitioner had to demonstrate that the F.I.R. in question had to demonstrate that the F.I.R. in question had been registered against him with mala fide intent. The petitioner has failed to show that the F.I.R. in question has been registered against him with mala fide intent. The petitioner has not stated any thing in the petition as to why a false and fabricated case has been registered against him by a multi-national bank. There is a bald assertion that "F.I.R. in hand is result of mala fide on the part of the complainant and the prosecution in order to achieve ulterior motives. It has E neither been stated in the petition nor argued before this Court as to what were the reasons compelling the complainant who works for a multi national bank to have lodged a criminal case against the petitioner with mala fide intent. It is trite that material particulars of mala fide have to be given in the body of the petition before a person can be allowed to allege and prove the same as has been held by the august Supreme Court of Pakistan. The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad Khan and others and The Secretary, Department of Education, Government of Punjab, v. M.R. Toosy, Ex-Principal, Government College, Sargodha and others PLD 1974 SC

151. No Court has any power to grant pre-arrest bail unless it can be shown that the F.I.R. in question is tainted with mala fide. There is nothing on the record to show that a false and frivolous criminal case has been registered against the petitioner with mala fide intent and with ulterior motives.

7. The upshot of the above discussion is that this petition being without any merit is dismissed. Ad interim pre-arrest bail already granted to the petitioner vide order, dated 21-10-2010 stands recalled. N.H.Q./U-18/L Pre-arrest bail refused.