ORDER SHEET
IN THE HIGH COURT OF
SINDH, BENCH AT SUKKUR
Cr. B.A No: 700/2009
For hearing
*****
Mr. Pervez Ahmed
Lanjar along with applicant.
Mr. Zulifiqar
Ali Jatoi, DPG.
O R D E R.
MUHAMMAD
ATHER SAEED, J--- This
pre-arrest bail has been filed against the order of the Sessions Judge, Khairpur,
dated 25-06-2009 in Cr. B.A No: 517/2009 in Crime No: 73/2009 registered with
P.S: B-Section, Khairpur for offence U/S: 489-F, PPC wherein the learned Sessions
Judge had rejected his pre-arrest bail application and recalled the interim
bail granted earlier.
Interim pre-arrest bail
was granted by this Court, vide its order dated
I have heard the learned
counsel for the applicant Mr. Pervez Ahmed Lanjar and the learned DPG Mr.
Zulifiqar Ali Jatoi.
The main contention of
the learned counsel for the applicant is that basically the cheques were issued
as security only with understanding that cash will be paid and cheques shall
not be presented before the Bank. He further submitted that cash was paid but
due to friendly relation between the applicant and the complainant, the
receipts were not insisted upon and sometime after payment of the
consideration, the complainant started asking the applicant for further payment
and on his refusal, the FIR was filed with malafide intentions. He relied upon the
following two Judgments of this Court, (i). Ghulam Qadir versus the State
reported in 2007 YLR 1495 and (ii) Ubedullah versus the State reported in 2003
P.Cr.L.J 1921. On the basis of above arguments, he prayed that the interim
pre-arrest bail granted may be confirmed.
This plea has been strongly
opposed by the learned DPG who submitted that the Honourable Supreme Court has
laid down the parameters for grant of pre-arrest bail in its Judgment in the
case of Rana Mohammad Arshad versus Mohammad Rafique and another reported in
2009 PLD SC 427. He pointed out that the applicant’s case does not fall within
the criteria laid down by the Honourable Apex Court for grant of pre-arrest
bail, and therefore, he is not entitled to grant of pre-arrest bail. He,
therefore, prayed that the interim bail granted to him by this Court may not be
confirmed.
I have examined the case
in the light of the arguments of the learned counsel and have perused the
records of the case including the FIR, the impugned order and the Judgments
relied on by the learned counsel.
On a perusal of the FIR,
it is evident that the FIR was filed four months and six days after the date of
occurrence of the alleged incident. On a perusal of the impugned order, I have
seen that the learned Sessions Judge has in one line accepted the explanation
of the complainant for the delay in filing the FIR by terming it plausible. The
explanation which has been given by the complainant is that after the cheques
had been dishonoured, the applicant kept him on false hopes and therefore, the delay
in filing the FIR occurred. In my humble view, this reason has been given by the
complainant without any substantiation as to what efforts were made by him to
collect this amount, how the present applicant kept on making promises and gave
him false hopes and as to why he did not file the FIR earlier. This cannot be
termed a plausible explanation and in my humble opinion, the learned Sessions Judge
fell in error when he accepted this explanation as plausible. Another reason
for the refusal of the confirmation of the bail given by the learned Sessions
Judge is that the applicant had not co-operated with the Investigating Agency
and the challan filed U/S: 512 had shown him as an absconder. The learned
Sessions Judge failed to realize that the Honourable Supreme Court in a number
of cases even in post arrest bail cases has held that absconsion cannot be the only
reason for refusal of bail and the absconsion in those cases was more serious
than merely not appearing before the investigation agency. Since I have been
informed that the applicant has been appearing before the trial Court,
therefore, I am of the considered opinion that the applicant is entitled to
bail. However, his entitlement has to be examined in the light of the Judgment
of the Apex Court and it has to be seen whether the applicant’s case falls
within the parameters fixed by the Honourable Apex Court for refusal of the
pre-arrest bail in the case of Rana Mohammad Arshad versus Mohammad Rafique and
another quoted supra because if it does then this Court is bound by the
Judgment of the Honourable Apex Court under Article 189 of the Constitution of
Islamic Republic of Pakistan and would not be in a position to grant him bail.
The criteria fixed by the Honourable
a) Grant of bail before arrest is an
extraordinary relief to be granted only in extraordinary situation to protect
innocent persons against victimization through abuse of law for ulterior
motives;
b) Pre-arrest bail is not to be used as a
substitute or as an alternative for post-arrest bail;
c) Bail before arrest cannot be granted
unless the person seeking it satisfies the conditions specified through sub
section (2) of section 497 of Code of Criminal Procedure i.e. unless he
establishes the existence of reasonable grounds leading to a belief that he was
not guilty of the offence alleged against him and that there were, in fact,
sufficient grounds warranting further inquiry into his guilt;
d) Not just this but in addition thereto, he
must also show that his arrest was being sought for ulterior motives,
particularly on the part of the Police; to cause irreparable humiliation to him
and to disgrace and dishonour him;
e) Such a petitioner should further
establish that he had not done or suffered any act which would disentitle him
to a discretionary relief to equity e.g. he had no past criminal record or that
he had not been a fugitive from law; and finally that,
f) In the absence of a reasonable and a
justifiable cause, a person desiring his admission to bail before arrest, must,
in the first instance, approach the Court of first instance i.e. the Court of
Session, before petitioning the High Court for the purpose.
Before I discuss the above
parameters, it will also be appropriate to highlight the facts of the case in
the above Judgment. In that case, the FIR was filed in respect of offence U/S:
302, PPC as it related to murder of the complainant’s son and brother and the
Honourable Apex Court was not satisfied by the Judgment delivered by the
learned Single Judge in the chamber and therefore, ordered for cancellation of
bail for the following reasons:-
a) That the prosecution case could not be
said to have become doubtful only because the accused had not been named in the
FIR and had been nominated subsequently through a supplementary statement;
b) That the case was not one where it could
be said that the same had been fabricated on account of ulterior motives either
on the part of the police or even on the part of the complainant;
c) That the concessions extended to Tariq
accused on account of his physical disability could not be made available to
Rafique accused who was a perfectly healthy person;
d) That no explanation existed on record for
granting the extra-ordinary relief of bail before arrest and that also in a
double murder case, to a person i.e. Rafique accused who was a proclaimed
offender and who had been a fugitive from law for more than two years; and
e) That no reason was available in the
impugned order or even on record which could justify a direct approach to the
High Court for grant of pre-arrest bail without moving the Court of Session for
the purpose.
From a perusal of reasons
reproduced above and criteria highlighted by the Honourable Apex Court, it is
evident that in that case the learned Lahore High Court had failed to examine
the case in the light of the above criteria and gave no reason for
non-fulfillment of the above criteria especially no query was raised and no
reason given in allowing the applicant in that case to approach the High Court
directly without first approaching the trial Court.
Examining the facts of
this case on the anvil of the criteria fixed by the Honourable
Even otherwise, from a
careful perusal of the above judgment, it is clear that the Honourable Apex Court
has, after examining the facts of the case, concluded that the applicant in
that case was not entitled to bail on the facts of the case also.
After the above analysis,
I am of the considered view that the applicant’s case meets the criteria fixed
by the Honourable Supreme Court in the above judgment for grant of pre-arrest
bail, and therefore, he is entitled to pre-arrest bail. I would, therefore,
confirm the pre-arrest bail already granted to him by the order of this Court
dated
The applicant is,
however, cautioned that if he does not co-operate with the Investigating Agency
or does not appear before the trial Court, this concession of bail may be
withdrawn.
This bail application is
disposed of in the above manner.
Judge
Rashid