اگر کسی ملزم کے پاس صرف شکایت کنندہ کی خواہش پر بعد از گرفتاری ضمانت کے لیے اچھا کیس ہے تو اسے قبل از گرفتاری ضمانت کی درخواست خارج کر کے اسے چند دنوں کے لیے سلاخوں کے پیچھے نہیں بھیجا جا سکتا۔

 PLJ 2022 Cr.C. (Note) 87

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

----S. 498--Pakistan Penal Code, (XLV of 1860), S. 462-I--Pre-arrest bail, confirmation of--Allegation of--Committing theft of electricity--Petitioner deposited a detection bill issued by WAPDA--Nothing recovered from possession of petitioner--Held: If an accused person has a good case for post arrest bail mere, at wish of complainant, he cannot be sent behind bars for few days by dismissing his application for pre-arrest bail--Petitioner has joined investigation--In attending circumstances, sending petitioner behind bars to quench grudge of complainant is against principle of natural justice--Bail allowed.                        [Para 4 & 6] A & C

PLD 2021 Supreme Court 708 ref.

Pre-arrest bail--

----It has been well settled by now that merits of case can also been taken into consideration at time of deciding pre-arrest bail.

                                                                                             [Para 5] B

PLD 2021 SC 898.

Mr. Muhammad Akmal Khan, Advocate with Petitioner.

Mr. Muhammad Moeen Ali, Deputy Prosecutor General for State.

Mr. Attiq-ur-Rehman, Advocate for Complainant.

Date of hearing: 30.3.2022.

 PLJ 2022 Cr.C. (Note) 87
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
ISHTIAQ AHMAD--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 78492-B of 2021, decided on 30.3.2022.

Order

Through this petition Ishtiaq Ahmad petitioner, after dismissal of his pre-arrest bail by the learned Court below has approached this Court and seek confirmation of his ad-interim pre-arrest bail already granted to him by this Court vide order dated 14.12.2021 in case FIR No. 927 dated 29.10.2021, offence under Section 462-I, PPC registered at Police Station Mustafa Abad District Kasur.

2. Precisely, the allegation against the petitioner is that on 26.10.2021, during checking, the LESCO officials found him committing theft of electricity by getting direct connection from main cable, hence this case.

3. Arguments heard. Record perused.

4. At the very outset, learned counsel for the petitioner submits that a detection bill issued by the WAPDA for an amount of Rs. 256,179/- has since been deposited by the petitioner and placed on record payment receipt. In this backdrop, nothing is to be recovered from the possession of the petitioner, in case, his bail is dismissed. Even otherwise, if an accused person has a good case for post arrest bail mere, at the wish of complainant, he cannot be sent behind the bars for few days by dismissing his application for pre-arrest bail. Guidance is sought from case law titled as “Shahzada Qaiser Arfat alias Qaiser vs. The State etc.” (PLD 2021 Supreme Court 708) wherein the Hon’ble Supreme Court of Pakistan has held 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 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 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 10A 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 ....”

5. Similarly, it has been well settled by now that merits of the case can also been taken into consideration at the time of deciding the pre-arrest bail. Reliance is placed upon the case law titled as “Sajid Hussain alias Joji vs. The State and another” (PLD 2021 SC 898).

6. The petitioner has joined the investigation. In the attending circumstances, sending the petitioner behind the bars to quench the grudge of the complainant is against the principle of natural justice.

7. For the above reasons, this petition is accepted and ad-interim pre-arrest bail already allowed to the petitioner by this Court is confirmed subject to his furnishing fresh bail bonds in the sum of Rs. 1,00,000/- with one surety each in the like amount to the satisfaction of learned trial Court.

(A.A.K.)          Bail confirmed