SHEHBAZ AHMED vs THE STATE and anothers
This is a criminal petition filed by the petitioner Shehbaz Ahmed seeking post-arrest bail after the rejection of his bail applications by the lower courts in case F.I.R. No. 89 dated 17-4-2010 registered under Section 406 of the Pakistan Penal Code at Police Station Golra, Islamabad. The core legal question before the Islamabad High Court was whether the petitioner was entitled to the concession of post-arrest bail considering the specific role attributed to him, the non-bailable nature of the offence, and the delay in lodging the F.I.R. The Court held that the petitioner was nominated in the F.I.R. with a specific role, supported by witnesses, and that the delay in lodging the F.I.R. was not fatal as the complainant initially attempted to trace the accused privately. The petition was consequently dismissed, establishing that bail being a discretionary relief will not be exercised in favour of an accused nominated with specific roles in non-bailable offences involving financial misappropriation where investigation links him to the crime.
- Whether delay in lodging the F.I.R. is fatal to the prosecution case when the complainant initially attempts to trace the accused privately?
- Is an accused entitled to post-arrest bail as a matter of rule when nominated in the F.I.R. with a specific role for an offence under Section 406 of the Pakistan Penal Code 1860?
- Can bail be refused in a non-bailable offence where the accused absconded from his place of duty and remained untraced for a month?
- Section 406, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
' MUHAMMAD ANWAR KHAN KASI, J.---The petitioner after the rejection of his bail from the Court of learned Judicial Magistrate as well as from the court of learned Additional Judge, Islamabad vide orders dated 16-5-2011 and 15-6-2011 respectively, approached this Court for the grant of bail in case F.I.R. No,89, dated 17-4-2010, under section 406, P.P.C., registered at Police Station Golra, Islamabad on the inter alia grounds that his involvement is malicious, there is an inordinate delay in lodging the F.I.R., there is no direct evidence against him, he is no more required for the purpose of investigation; offence does not fall under the prohibitory clause of section 497(1), Cr.P.C. And case requires further inquiry.
2. In support of his contention, learned counsel for the petitioner relied upon the case-laws reported in 2011 M LD 459, 2011 PCr.LJ 589, 2008 PCr.LJ 778 and 208 MLD 1028," which are on the point that grant of bail is a rule and refusal is an exception when the maximum sentence is less than 10, years and the cases require further inquiry should be dealt with accordingly by granting bail.
3. Learned Standing Counsel as well as learned counsel for the complainant opposed the bail petition on the grounds that he is nominated in the F.I.R. With specific role, the money was received by the accused in presence of Farrukh Ahmad and Malik Arshad witnesses, the offence is non- bailable and complainant has been deprived of heavy amount. It is further submitted that in such cases, the complainant in the first instance always tries to locate the concerned person to get the money and after his failure approaches the police, which takes time and, therefore, the delay is not fatal.
4. Heard and record perused.
5. According to the prosecution story, the complainant on 11-4-2010 had been carrying an amount of Rs, Five lac to his place of business at the night time. Since it was a heavy amount, he entrusted it to the accused/petitioner Shahbaz in presence of Farrukh Ahmad and Malik Arshad and take the change of Rs,20,000 from the accused, who went away, while the complainant with his companions went to Margalla and on their return at 2-00 a.m. They went to the place of accused Shahbaz, but he was not available and his mobile number was not operational. In the next morning, he contacted the owner of Al-Syed Local Carriage and they both searched for the accused but he could not be found out.
6. The perusal of F.I.R. Reveals that the petitioner is nominated with a specific role and names of the witnesses are mentioned in the F.I.R. Who had fully supported the prosecution version, the accused remained absent from the scene and from place of his duty without any justification. He was arrested after one month of the incident arid in such cases delay in lodging of F.I.R. Cannot be considered as fatal for the simple reason that the complainant initially tries his best to find out the accused and approaches the police as a last resort only. No enmity alleged against the complainant or police for the involvement while the bail is a discretionary relief and the offence being non-bailable, the discretion cannot be exercised in favour of the petitioner.
7. The case-laws referred by the learned counsel for the petitioner arc distinguishable, because the facts of every case are different from each other and each case is to be decided on its own perspective keeping in view the peculiar circumstances.
8. Consequently, the bail petition is dismissed.