S. 489-F--Pre-arrest bail, confirmed--Dishonoured of cheque--During investigation opined that petitioner started committee with one “M” and he (petitioner) issued impugned cheque to “M” as guarantee/trust but subsequently due to non payment of some of committee amount said “M” gave said cheque to complainant--

 PLJ 2022 Cr.C. 721

Pre-arrest bail--

----Application of--Although, it is a pre-arrest bail application and merits for grant of bail before arrest and after arrest are all altogether different but in a recent pronouncement of Apex Court of Country in case titled as ''Khair Muhammad and another vs. The State through P. G. Punjab and another"(2021 SCMR 130) it has held that while granting pre-arrest bail even merits of case can be touched upon. [P. 722] B

2021 SCMR 130.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 498--Pakistan Penal Code, (XLV of 1860), S. 489-F--Pre-arrest bail, confirmed--Allegation of--Dishonoured of cheque--During investigation opined that petitioner started committee with one “M” and he (petitioner) issued impugned cheque to “M” as guarantee/trust but subsequently due to non payment of some of committee amount said “M” gave said cheque to complainant--The Investigating Officer further opined that impugned cheque was given by petitioner to “M” and not to complainant--Therefore, chances of petitioner's false implication with deliberation after consultation cannot be ruled out and his involvement in instant case would be determined at trial after recording and evaluating evidence--Held: It is well settled by now that it is not possible in each and every case to prove mala fide but same can be gathered from facts and circumstances of case. [Pp. 722 & 723] A & C

PLD 2021 SC 898 and PLD 2017 SC 730.

Malik Shahid Iqbal Awan, Advocate with Petitioner.

Mr. Moeen Ali, DPG for State.

Mr. Zahid Nawaz, Advocate for Complainant.

Date of hearing: 20.1.2022.

 PLJ 2022 Cr.C. 721
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
MUHAMMAD RIAZ--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 71483-B of 2021, decided on 20.1.2022.

Order

Through this petition, Muhammad Riaz, the petitioner, seeks pre-arrest bail in case FIR No. 499 dated 16-09-2021 under Section 489-F, PPC, registered with Police Station City, District Mianwali.

2. As per crime report, the precise allegation against the petitioner is that he dishonestly issued a cheque amounting to
Rs. 12,00,000/- for re-payment of amount to the complainant which was presented in the bank for encashment but the same was dishonoured.

3. I have mused over the arguments advanced by learned counsel for the petitioner as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant.

4. It evinces from record that the complainant lodged the FIR with delay of 02 months and 16 days, which has not been properly explained by the complainant, therefore, chances of petitioner's false implication with deliberation after consultation cannot be ruled out. Reliance can be made upon case titled as "Khair Muhammad and another vs. The State through PG Punjab and another" (2021 SCMR 130).

5. After going through the narration of FIR and the evidentiary material collected by the police and presented before this Court, it divulges the investigating officer during investigation vide case diary No. 14 dated 10-11-2021 opined that the petitioner started committee with one Mian Hussnain Shah and he (petitioner) issued the impugned cheque to Mian Husnain Shah as guarantee/trust but subsequently due to non payment of some of the committee amount said Mian Hussnian Shah gave the said cheque to the complainant. The Investigating Officer further opined that the impugned cheque was given by the petitioner to Mian Husnian Shah and not to the complainant. Therefore, chances of petitioner's false implication with deliberation after consultation cannot be ruled out and his involvement in the instant case would be determined at trial after recording and evaluating the evidence.

6. Although, it is a pre-arrest bail application and merits for grant of bail before arrest and after arrest are all altogether different but in a recent pronouncement of Apex Court of the Country in case titled as ''Khair Muhammad and another vs. The State through P. G. Punjab and another"(2021 SCMR 130) it has held that while granting pre-arrest bail even the merits of the case can be touched upon. The relevant portion of the esteemed judgment of the Apex Court of the Country is reproduced as under:

"... the concept of pre-arrest bail is exceptional, it has to be exercised sparingly. The purpose behind is to save innocent persons from false allegations, trumped up charges and malicious prosecution at the end of complainant party. In the salutary judgment of this Court reported as "Meeran Bux v. The State and another" (PLD 1989 SC 347), the scope of the pre-arrest bail has been widened and as such while granting pre-arrest bail even the merits of the case can be touched upon ...."

Similar view has been reiterated by the apex Court of the Country in the case titled as "Sajid Husain alias Joji vs. The State" (PLD 2021
SC 898).

7. It is well settled by now that it is not possible in each and every case to prove the mala fide but same can be gathered from the facts and circumstances of the case. I fortify my view from the dictum laid down in case titled as "Khalil Ahmed Soomro vs. The State" (PLD 2017 S.C 730), wherein the following principle has been enunciated:

"Although for grant of pre-arrest bail one of the pre-conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide."

Likewise, in the case of "Shahzada Qaiser Arfat alias Qaiser v. The State and another" (PLD 2021 SC 708), the Apex Court of the country was pleased to observe as under:

".... The non-availability of incriminating material against the accused or non-existence of a sufficient ground including a valid purpose for making arrest of the accused person in a case by the investigating officer would as a corollary be a ground for admitting the accused to pre-arrest bail, and vice versa. Reluctance of the Courts in admitting the accused persons to pre-arrest bail by treating such a relief as an extraordinary one without examining whether there is sufficient incriminating material available on record to connect the accused with the commission of the alleged offence and for what purpose his arrest and detention is required during investigation or trial of the case, and their insistence only on showing mala fide on part of the complainant or the Police for granting pre-arrest

bail does not appear to be correct, especially after recognition of the right to fair trial as a fundamental right under Article 10-A of Constitution of Pakistan, 1973. Protection against arbitrary arrest and detention is part of the right to liberty and fair trial. This Court has, in many cases, granted pre-arrest bail to accused persons after finding that there are no reasonable grounds for believing their involvement in the commission of the alleged offence and has not required independent proof of mala fide on part of the Police or the complainant before granting such relief. Despite non-availability of the incriminating material against the accused, his implication by the complainant and the insistence of the police to arrest him are the circumstances which by themselves indicate the mala fide on part of the complainant and the Police, and the accused need not lead any other evidence to prove mala fide on their part ....

The investigation in this case is complete and petitioner is no more required for further investigation.

8. The epitome of above discussion is that the petitioner Muhammad Riaz has succeeded in making the case for the confirmation of the pre-arrest bail, hence, this petition is allowed and the ad-interim pre-arrest bail already granted to the petitioner vide order dated 16-11-2021 is hereby confirmed subject to his furnishing of fresh bail bonds in the sum of Rs. 100,000/- (Rupees one hundred thousand only) with one surety, in the like amount each to the satisfaction of the learned trial Court.

9. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial Court in any manner.

(A.A.K.)          Bail confirmed