IFTIKHARULHASSAN vs The STATE and anothers
The instant matter arises from a petition seeking post-arrest bail by the petitioner in respect of F.I.R. No. 17 of 2012 registered at Police Station ACE Circle Faisalabad under sections 420, 468, 471, 109, 161, and 409 of the Pakistan Penal Code 1860 and section 5(2) of the Prevention of Corruption Act 1947. The core legal question was whether the petitioner was entitled to post-arrest bail given that he was not named in the F.I.R., no incriminating recovery was made from him during physical remand, the documentary evidence was already in the possession of the prosecution, and the maximum punishment for the offences did not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. The Lahore High Court accepted the petition and granted post-arrest bail to the petitioner. The court held that in offences not falling within the prohibitory clause of section 497(1) of the Code of Criminal Procedure 1898, the grant of bail is a rule and refusal an exception, particularly where documentary evidence remains in the exclusive possession of the prosecution and the accused is no longer required for further investigation.
- Whether bail should be granted as a rule in offences not falling within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Does the absence of the accused's name in the F.I.R. and lack of recovery during physical remand constitute grounds for post-arrest bail?
- Does the fact that documentary evidence is in the exclusive possession of the prosecution eliminate the risk of tampering for the purpose of bail?
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 161, Pakistan Penal Code 1860
- Section 409, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant petition, the petitioner has sought his post-arrest bail in case F.I.R No,17 of 2012, dated 27-2-2012, offence under sections 420, 468, 471, 109, 161, 409, P.P.C., read with section 5 (2), of the Prevention of Corruption Act, 1947, registered at Police Station ACE Circle Faisalabad.
2. Facts of the case already stand mentioned in Criminal Miscellaneous No,3775-B of 2012, whereby co-accused namely Muhammad Hasan Riaz was admitted to post-arrest bail by this Court in terms of order dated 28-3-2012, therefore, there is no need to repeat the same here.
3. Learned counsel for the petitioner submits that the petitioner has falsely been involved in the instant case by the complainant against the actual facts and circumstances with ulterior motives.
The allegations levelled against the petitioner, learned counsel contends, are frivolous and baseless. It is submitted that the petitioner is not named in the F.I.R.; rather he has been involved in the instant case on the basis of inquiry conducted in the instant case. It is contended that no specific date and time of the alleged occurrence has been mentioned in the crime report, rather the same is mentioned in the F.I.R. As unknown. It is argued that despite remaining on physical remand with the police for a considerable period nothing could be recovered from the petitioner. It is argued that the evidence against the petitioner is in the shape of documents, which is in exclusive possession of the prosecution and as such there is no possibility of tampering with the same. Moreover, the petitioner is a government servant and if he is admitted to bail there is no chance of his abscondence. Learned counsel next submits that the petitioner is previous non- convict and behind the bars since the date of his arrest and no more required by the police for further investigation, therefore, he is entitled to the concession of bail.
4. Contrarily learned Deputy Prosecutor-General has opposed this bail petition with full force. He argues that though the petitioner is not named in the F.I.R., however he was found involved in the instant case during the course of inquiry conducted in the matter. Moreover, the petitioner confessed his guilt while recording his statement under section 164. Cr.P.C. It is argued that two receipts are available on the record showing that the petitioner has withdrawn an amount of Rs,1,37,000 on behalf of the pensioners, who had already expired. Moreover, the petitioner has been found guilty during the course of investigation and in such circumstances the petitioner is not entitled to the relief prayed for.
5. Arguments advanced at the bar heard. I have also gone through the record available on file.
6. Admittedly the petitioner is not named in the F.I.R. No specific date and time of occurrence has been mentioned in the crime report. Despite remaining on physical remand with the police for a considerable period nothing incriminating could be recovered by the police from the A present petitioner. Even otherwise maximum sentence, of, offence against the petitioner is not more than seven years as such the same is not covered under subsection (1) of section 497, Cr.P.C. And as has been held in the case of Tariq Bashir v. The State (PLD 1995 SC 34), in cases not punishable with death, transportation of life or 10 years' Imprisonment, grant of bail is a rule and refusal an exception. Moreover, similar view was affirmed by the august Supreme Court of Pakistan in the case of Riaz Jafar Natiq v. Muhammad Nadeem Dar and others (2011 SCM R 1708). The bulk of evidence against the petitioner is in the shape of documents, which is in the exclusive possession of the prosecution and if the petitioner is admitted to bail there is no apprehension of his tampering with the prosecution evidence. Guidance in this regard is sought from the ratio decidendi of august Supreme Court of Pakistan in the case of Saeed Ahmed v. The State (1995 SCM R 170). Moreover, the petitioner is a government official and if he is admitted to bail, there is no possibility of his absconsion. Reference in this regard can be made to the reported case of Firdaus Ahmad Khan v. The State (2004 M LD 208). The guilt against the petitioner would be determined by the learned trial Court after recording of evidence during trial as no report of handwriting expert is available on the record. The petitioner is stated to be previous nonconvict/non-record holder and behind the bars since the date of his arrest. Moreover, his person is no more required by the police for further investigation.
7. In sequel to above, this petition is ACCEPTED and the petitioner is admitted to bail after-arrest subject to his furnishing bail bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.