MUHAMMAD HASHIM & 2 others vs STATE and another
This matter concerns a petition for pre-arrest bail filed by three accused individuals in a criminal case registered under Sections 406, 420, 468, 471, and 34 of the Pakistan Penal Code 1860, involving allegations of misappropriation of funds. The core legal question was whether the petitioners were entitled to pre-arrest bail given the significant delay in lodging the FIR and the existence of prior civil litigation between the parties. The Court held that the petitioners were entitled to confirmation of bail. The ratio decidendi rests on the finding that the four-year delay in reporting the crime, coupled with the complainant's failure to explain the delay and the existence of a prior civil suit, indicated mala fide intent. Furthermore, the Court established the principle that where the prosecution's evidence is primarily documentary and already in the possession of the investigating agency, there is no reasonable apprehension of tampering, thereby justifying the grant of pre-arrest bail. The Court confirmed the ad-interim bail, emphasizing that the criminal process should not be used to settle civil disputes or harass the accused.
- Does a significant, unexplained delay in lodging an FIR constitute grounds for granting pre-arrest bail?
- Is pre-arrest bail appropriate when the prosecution evidence is purely documentary and in the possession of the state?
- Can the existence of prior civil litigation between parties regarding the same subject matter indicate mala fide intent in a subsequent criminal case?
- Section 406, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 195(c), Code of Criminal Procedure 1898
ORDER
Apprehending their arrest at the hands of police, Muhammad I lashim, Muhammad Aslam and Masood Ahmed, petitioners have sought for their pre-arrest bail in case FIR No, 266, dated 27.09.2010, offence under Sections 406, 420, 468, 471, 34, PPC, lodged at Police , Station Farid Nagar, District Pakpattan Sharif.
2. Precise allegation against the petitioners, as per the contents of FIR, is that on 03.11.2006, they usurped a huge amount of Rs, 12,00,000/- of.the complainant.
3. Learned counsel for the petitioners submits that they are in nocent and have falsely been involved in this case by the complainant for satisfying ulterior motives just to humiliate the petitioners and cause them unjustified harassment. It is argued that there is a delay of four years, which has not been explained. Learned counsel vehemently urges that the complainant had filed civil suit for specific performance against the petitioners on 27.10.2009 regarding this fact and lodging of the instant, case after a delay of one year subsequent to the filing of the civil suit, can he termed mola fide on his part. Learned counsel further argues that evidence against the petitioners is in the shape of documents and there is no apprehension of their tampering with the same. In this backdrop, learned counsel submits, case of the petitioners is fit for the relief prayed for.
4. On the other hand learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant has opposed this bail petition with full force. Learned counsel for the complainant argues that the petitioners are nominated in the FIR, who usurped huge amount of the complainant; therefore, they are not entitled to the extraordinary relief of pre-arrest bail.
5. Arguments advanced pro and contra have been heard. I have also gone through the record available on file.
6. Although the petitioners are named in the FIR: however, there is a delay of four years in lodging the crime report, which has not been properly explained. Perusal of record further reveals that the complainant had filed a civil suit against the petitioners and others on 27.10.2009 meaning thereby that he came to know at that time about the alleged fraud of the petitioners and now registration of case on 27.09.2010 alter one year, in the circumstances, shows his mala fide. Even otherwise during the proceedings of the civil suit, the complainant could have invoked the jurisdiction of that Court as provided under Section 195(c), Cr.P.C, which has not been done.
7. I find much weight in the contention of learned counsel for the petitioners that evidence against the petitioners is in the shape of documents, which is in the exclusive possession of the prosecution/ Investigating Agency and if they are admitted to bail there is no apprehension of their tampering with the prosecution evidence. Guidance in this behalf is sought from the ratio decidendi of august Supreme Court of Pakistan in the case of Saeed Ahmed Vs. The State (1995 SCM R 170).
8. For the foregoing facts and circumstances, I am persuaded to accept this petition as a consequence whereof ad-interim pre-arrest bail already granted to the petitioners in terms of order dated 15.11.2010 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Its.10,00,000/- each with one surety each in the like amount to the satisfaction of learned trial Court.