2009 PLP 1270 (YLR)

MRS. QAISER IQBAL, J.

The applicant has sought cancellation of pre-arrest bail awarded to the respondents in Criminal Bail Application No.552 of 2007, Crime No.362/2007 under sections 406, 450, 480, 471, P.P.C. of P.S. Shahrah-e-Faisal. Succinctly the facts leading to the case are that petitioner being partner of Salman Enterprises constructed a project known as Madina Blessings lodged F.I.R No.362/2007 at P.S. Shahrah-e-Faisal against respondent No.2 that he acquired a flat on rent stared an Estate Agency under the name and style of SNA, negotiated nine flats in the said project to different persons let out on rent after collecting monthly rents of the said flats used to deposit the same in petitioner's office. Respondent No.2 opened an office in Nazimabad along with his associate Shiraz used to collect the rents and deposit the same in petitioner: s office. In the month of May 2007 the employee of the complainant went to the said project to collect the rent he was informed that respondent No.2 had sold nine flats of the complainant's firm on the basis of forged documents under forged signatures cheated the occupants of flats pocketed three crores of rupees as transpired from the accounts maintained in three banks. On 30-6-2007 respondents Nos.2 and 3 applied for bail before arrest, they were granted interim bail and on 30-6-2007 and 26-9-2007, interim bail was confirmed, hence this application. Learned counsel for applicant has contended that the parameters for grant of pre-arrest bail and post-arrest bail are altogether different. If an accused apprehends his arrest on account of ulterior motives particularly on the part of the police which would cause him undue harassment, irreparable humiliation on account of unjustified arrest. In case of Shaikh Zahoor Ahmed v. The State (PLD 1974 Lah. 256), bail before arrest was awarded to the petitioner on the ground that he was being victim and involved in false, criminal cases. The principle initiated in the above case was reiterated in case of Murad Khan v. 'Fazal Subhan and others (PLD 1983 SC 82). It is next urged that if the bail granted to the respondents relates to the possibility of recovery of misappropriated money would be a good ground for cancellation of bail. In case of Mst. Qudrat Bibi v. Muhammad Iqbal and another (2003 SCMR 68), accused was involved in commission of charges 302/34, P.P.C., pre-arrest bail granted to the accused was recalled as his involvement was not based on mala fide by the prosecution. In case of Mian Fazal Imran and another v. The State (2006 PCr.LJ 1030), the accused was charged in commission of the offence under sections 406/408/420/463 & 471, P.C., pre-arrest bail was refused as there was no malice on the part of the complainant or police to involve the accused in the commission of the crime, this view is also reiterated in case of Khalid Mehmood v. Abdul Qadir Shah and State (1994 PCr.LJ 1784). Learned counsel for respondents Nos.2 and 3 has submitted that on account of the offence with which the respondents are charged, the entire edifice has been built by the prosecution on the basis of mala fide and ill will therefore the impugned order does not call for any interference at this stage. It is well settled law that for claiming pre-arrest bail an accused person is not only required; to make out a good prima facie ground, also that his intended arrest was tainted with mala fides on the part of the police or due to ulterior motives of causing humiliation and harassment to him. In the present case there is nothing on record to show that the police had acted with malice, in the matter of intended arrest of the respondents. The Investigating Officer present in court has manifestly admitted that respondents Nos.2 and 3 are involved in a scam of misappropriation of hug amount as per statement of account placed on record as well as the respondents are also required in other cases of similar nature registered at police stations at Karachi therefore on the face of the record it cannot be conveniently held that there was a malice on the part of the police to connect the respondents. In the charged offence. It cannot be ignored that the respondents were instrument of cheating, fraud, manipulation thereby casing huge loss to the complainant by way of embezzlement. There seems to be no justification for grant of pre- arrest bail to the respondents Nos.2 and 3 therefore the impugned order is hereby set aside, pre-arrest bail granted to the respondents hereby stands cancelled in terms of section 497(5), Cr.P.C. H.B.T./W-4/K Bail cancelled.