PLJ 2024 Cr.C. (Note) 50
[Lahore High Court, Multan Bench]
Present: Muhammad Tariq Nadeem, J.
MUHAMMAD USMAN--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 6822-B of 2022, decided on 10.1.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), S. 406--Dispute of civil nature--Pre-Arrest Bail--Confirmation of--Accused obtained three cheques amounting to Rs. 70,00,000/-from the complainant in order to purchase some property--But neither be got purchased the property in his name nor returned the amount--Dispute between the parties is purely of civil nature--Applicability of section 406 PPC--will be best settled by the trial Court after recording and evaluating the evidence--Investigation to the extent of petitioner is complete--Ad-interim pre-arrest bail is confirmed.
[Para 2, 4] A, B & C
PLD 2021 SC 898; PLD 2017 SC 730; PLD 2021 SC 708;
2021 SCMR 130 ref.
Mr. Zia-ur-Rehman, Advocate for Petitioner.
Mr. AnsarYaseen, DPG for State.
Khawaja Qaisar Butt and Malik Muhammad Baqir Awan, Advocates for Complainant.
Date of hearing: 10.1.2023.
Order
Through this petition filed under Section 498, Cr.P.C., petitioner Muhammad Usman supplicates pre-arrest bail in case FIR No. 950/2022 dated 04.07.2022, registered in respect of an offence u/S. 406, PPC, at Police Station BahaudinZakriya, District Multan.
2. Precise allegation against the petitioner is that he obtained three cheques amounting to Rs. 70,00,000/-from the complainant in order to purchase some property measuring 07-Acres for him but neither he got purchased the property in his name nor returned the amount to him rather he misappropriated the said amount and got registered the property in his own name. Hence, this case.
3. I have mused over the arguments advanced by learned counsel for the petitioner as well as learned Deputy Prosecutor General appearing for the State, assisted by learned counsel for the complainant assiduously and perused the record minutely with their able assistance.
4. After going through the narration of FIR and evidentiary material collected by the police and presented before this Court, it divulges that dispute between the parties is purely of civil nature. So far as applicability of Section 406, PPC, is concerned, that is doubtful in nature and will be best settled by the learned trial Court after recording and evaluating the evidence. It has been well settled by now that civil dispute cannot be resolved through criminal proceedings.
5. So far as the contention made by learned counsel for the complainant that there is no mala-fide or ulterior motive on the part of complainant as well as police which is sine qua non for confirmation of bail before arrest and these grounds are lacking in this case, for the reason, the petitioner is not entitled for the concession of extra-ordinary relief of bail before arrest. I am not in agreement with this contention because it is not possible in each and every case to prove these elements, however, the same can be deduced and inferred from the facts and circumstances of the case. I fortify my view from the dictum laid down in case law titled as “Khalil Ahmed Soomro vs. The State” (PLD 2017 SC 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 “ShahzadaQaiserArfat 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 malafide 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 malafide 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 malafide on part of the complainant and the Police, and the accused need not lead any other evidence to prove malafide on their part.…”
6. Although, it is a pre-arrest bail application yet 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 been 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 Hussain alias Joji vs. The State” (PLD 2021 SC 898).
7. Investigation to the extent of petitioner is complete and there is no allegation that he has miss-used the concession of ad-interim pre-arrest bail. The accumulative effect of supra mentioned discussion is that the petitioner has succeeded in making out 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 is confirmed subject to his furnishing fresh bail bonds in the sum of Rs. 1,00,000/-(Rupees one hundred thousand only) with one surety, in the like amount to the satisfaction of the learned trial Court.
8. However, it is made clear that observations made hereinabove are tentative in nature and shall not influence the trial Court in any manner.
(K.Q.B.) Bail allowed
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