PLJ 2022 Cr.C. (Note) 135
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), S. 406--Pre-arrest bail, grant of--Allegation of--Dishonest misappropriate--Delay in lodging FIR--After going through narration of FIR, evidentiary material collected by police and present before Court, it divulges that matter between parties is purely of civil nature and it has been well settled by now that broken promise not fulfilling terms and conditions of an agreement does not constitute an offence under Section 406, PPC and element of P entrustment is sine qua none which is very much lacking in this case--Insofar as principles for grant of pre-arrest bail i.e. mala fide or ulterior motive of complainant and police is concerned, it is not possible in every case to prove same, however, these grounds can be gathered from facts and circumstances of case--Bail accepted. [Para 5 & 6] A & B
2021 SCMR 130, 2011 SCMR 1614 & PLD 2017 SC 730 ref.
Mr. Nasir Javed Ghumman, Advocate with Petitioner.
Hafiz Asghar Ali, DPG for State.
Mr. Muhammad Mushtaq Ahmed Dhoon, Advocate for Complainant.
Date of hearing: 8.3.2022.
PLJ 2022 Cr.C. (Note) 135
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
QASIM ALI alias QASIM CHEEMA--Appellant
versus
STATE and another--Respondents
Crl. Misc. No. 80588-B of 2021, decided on 8.3.2022.
Order
Through this petition filed under Section 498, Cr.P.C., petitioner Qasim Ali alias Qasim Cheema supplicates pre-arrest bail in case FIR No. 118/2021, dated 22.04.2021 for an offence under Section 406, PPC, registered at Police Station Saddar Lala Moosa, District Gujrat.
2. As indicated by brief charge levelled out in the wrongdoing report is that he being entrusted with rough rice valuing Rs. 30,00,000/- by complainant and dishonestly misappropriated the same. Hence, this FIR.
3. I have mused over the arguments advanced by the learned for the petitioner as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant and perused the record with their able assistance.
4. As per narration of the FIR, the alleged occurrence had taken place on 10.11.2020, whereas the matter was reported to the police on 22.04.2021. There is delay of almost 05-months and 13-days and there is no explanation qua such delay in lodging the FIR, meaning thereby, the FIR has been lodged after due deliberation and consultation. Reliance is placed upon the case law titled as “Khair Muhammad and another vs. The State through PG Punjab and another” (2021 SCMR 130) wherein it has been held as under:
“… According to the contents of the crime report, it is mentioned that the occurrence has taken place in the morning whereas the matter was reported to police at 10:50 a.m. Admittedly, the inter-se distance between the place of occurrence and police station is 08-KM. Inordinate delay qua time of occurrence and registration clearly reveals that possibility of deliberation and consultation cannot be ruled out ...”.
5. After going through the narration of FIR, evidentiary material collected by police and present before the Court, it divulges that matter between the parties is purely of civil nature and it has been well settled by now that broken promise not fulfilling the terms and conditions of an agreement does not constitute an offence under Section 406, PPC and the element of entrustment is sine qua none which is very much lacking in this case. A reference in this respect may be made to the case of “Shahid Imran vs. The State and others” (2011 SCMR 1614).
6. Insofar as principles for grant of pre-arrest bail i.e. mala fide or ulterior motive of the complainant and police is concerned, it is not possible in every case to prove the same, however, these grounds can be gathered from the facts and circumstances of the case. In the case titled as “Khalil Ahmed Soomro vs. The State” (PLD 2017 S.C 730), 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 ...”
7. The investigation to the extent of petitioner is complete and he is no more required for the purpose of further investigation. Moreover, petitioner has not miss- used the concession of bail before arrest and he has succeeded in making the case of bail before arrest. Resultantly, this petition is hereby accepted and ad- interim pre-arrest bail already granted to the petitioner vide order dated 22.12.2021 is confirmed subject to his furbishing fresh bail bonds in the sum of Rs. 1,00,000/- (Rupees one lac only) with one surety in the like amount to the satisfaction of learned trail Court.
8. However, the observations made hereinabove are tentative in nature and the same are strictly confined to the disposal of instant bail application.
(A.A.K.) Bail accepted
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