SHOAIB AHMAD vs THE STATE

ORDER

' TARIQ SHAMIM, J.---Through this petition the petitioner seeks pre-arrest bail in case F.I.R. No, 168/2006, dated 10-4-2006 for offence under section 409, P.P.C. Registered at Police Station Old Anarkali, Lahore.

2. The brief facts of the case are that a parcel was sent from England by the brother of the complainant containing 5 mobile phones valued at Rs,1,19,500 which was misappropriated by the petitioner and others.

3. The learned counsel for the petitioner contended that under the Post Office Act only an officer who had been nominated could get a case registered on the direction of Post Master General, hence the case registered by the Local Police was against the law; that the complainant had compromised with the petitioner and had sworn an affidavit in the said respect; that the provisions of section 409,P.P.C. Were not attracted to the case , of the petitioner; that the delay in lodging of the F.I.R. Had not been explained and finally, contended that nothing had to be recovered from the petitioner as such he was entitled to the concession of pre-arrest bail. Reliance was placed upon judgments Muhammad Arshad and another v. The State (2005 M LD 1836), Syed Sabir Hussain Shah and another v. Syed Iftikhar Hussain Shah and another (1995 M LD 563), Mazhar Iqbal and others v.

The State (2004 PCr.LJ 923), Allah Bakhsh v. The State (2004 PCr.LJ 285) and Abdul Shafiq v The State (1988 PCr.LJ 852)

4. On the other hand the learned Assistant Advocate-General appearing on behalf of the State contended that the petitioner was nominated in the F.I.R. And specific role had been attributed to him; that the delay in lodging the F.I.R. Had been explained therein; that the F.I.R. Against the public servant could be registered by local police, hence there 'was no violation of any provisions of the Post Office Act. Refers to the cases of Muhammad Yasin v. S.S.P. And others (2004 SCM R 868) and M.Abdul Latif v. G.M. Paracha and others (1981 SCM R 1101).Further contended that no mala fides had been shown by the accused-petitioner against the complainant of the case or the police officials for his false involvement in the case; that recovery of the mobile phones had yet to be effected from the petitioner who has not joined the investigation since the registration of the case; that the affidavit relied upon by the learned counsel for the petitioner was of no consequence as the offence was non-compoundable offence; that the offence under section 409, P.P.C. Was hit by prohibitory clause of section 497, Cr.P.C. Hence the petitioner was not entitled to extraordinary concession of pre-arrest bail.

5. I have heard the learned counsel for the parties and have perused the record.

6. The petitioner is named in the F.I.R. And specific role has been attributed to him. The delay in lodging the F.I.R. Has amply been explained therein. The dictum laid down by the Hon' ble Supreme Court in the cases referred to by the learned Assistant Advocate General is fully applicable to the case of the petitioner wherein it has been observed that the local police can register a case against a public servant. The argument of the learned counsel for the petitioner that the case was registered against the provisions of the Post Office Act is misconceived as a perusal of the F.I.R.

Reveals that the procedure prescribed under the Post Office Act was complied with and the Post Master General had himself ordered registration of the F.I.R. No mala fide has been shown by the petitioner against the complainant of the case or the police official for his false implication in the case. Mala fide on the part of the complainant or the police is a pre-requisite for the grant of extraordinary concession of pre-arrest bail which is lacking in the case. Reliance is placed on Muhammad Ali v The State (2005 YLR 1239), Rana Shahid Farooq and others v The State (2004 PCr.LJ 1007), Wasif and others v. The State (2004 M LD 1533). The petitioner after dismissal of his bail application by the learned Special Judge Central, Lahore did not surrender himself before the police and escaped from the Court in order to approach this Court on this ground alone the petitioner is not entitled to the grant of extraordinary concession of pre-arrest bail. Reference is made to, the case of Malik Muhammad Nawaz Khan and others v. State 1997 PCr.LJ 390. The provisions of section 409, P.P.C. Are prima facie attracted to the case of the petitioner which entails a sentence of 10 years imprisonment. The offence therefore falls within the prohibitory clause of section 497. Cr.P.C. The recovery of the mobile telephones is yet to be effected from the petitioner who has not joined the investigation at any stage and in such situation grant of pre-arrest bail would amount to putting a clog in the investigative process. Reference is made to Wasif and 2 others v. The State (2004 M LD 1533). Further, the affidavit referred to by the learned counsel for the petitioner sworn by C the complainant is inconsequential as the offence under section 409, P.P.C. Is a non-compoundable offence. A tentative assessment of the evidence on the record shows that at present there is ample evidence on the record to connect the petitioner with the commission of offence alleged in the F.I.R. The judgments referred to by the learned counsel for the petitioner are distinguishable.

7. For what has been discussed above the petition being without force is dismissed and the ad interim pre-arrest bail granted to the petitioner vide order dated 2-8-2006 is recalled.