MALIK JAVED AKHTAR vs THE STATE, ETC.s
This matter originated as a petition for leave to appeal against an order of the Islamabad High Court, which had refused pre-arrest bail to the petitioner in a case registered under Section 409 of the Pakistan Penal Code 1860. The core legal question was whether the ingredients of the offence under Section 409, specifically the element of 'entrustment' as contemplated by Section 405, were prima facie satisfied, given that the petitioner was neither a public servant nor a broker. Upon review, the Supreme Court observed that the applicability of Section 409 appeared suspect due to the lack of evidence regarding entrustment. Furthermore, the Court noted that the petitioner had already joined the investigation, rendering the police's insistence on arrest potentially lacking in bona fides. Consequently, the Court converted the petition into an appeal, allowed it, and granted pre-arrest bail to the petitioner. The judgment reinforces the principle that pre-arrest bail may be granted where the applicability of the charged penal provision is prima facie doubtful and the accused has cooperated with the investigation process.
- Does the absence of the status of a public servant or broker make the application of Section 409 of the Pakistan Penal Code 1860 prima facie suspect?
- Can pre-arrest bail be granted when the accused has already joined the investigation and the necessity for arrest is questionable?
- Is the element of 'entrustment' under Section 405 of the Pakistan Penal Code 1860 a necessary prerequisite for invoking Section 409 of the Pakistan Penal Code 1860?
- Section 405, Pakistan Penal Code 1860
- Section 409, Pakistan Penal Code 1860
ORDER
' ASIF SAEED KHAN KHOSA, J.---Through this petition Malik Javed Akhtar petitioner has sought leave to appeal against the order dated 19.12.2014 passed by a learned Judge-in-Chamber of the Islamabad High Court, Islamabad in Criminal Miscellaneous No, 681-B of 2014 whereby pre-arrest bail was refused to him in case FIR No, 155 registered at Police Station Golra Sharif, Islamabad on 05.06.2014 in respect of an offence under section 409, PPC.
2. After hearing the learned counsel for the parties and going through the records we have entertained some doubts as to whether any "entrustment" of property was involved in this case within the contemplation of section 405, PPC so as to attract the provisions of section 409, PPC. It is not denied that the petitioner is not a public servant and there is no material available before us to hold that the petitioner is a broker within the contemplation of section 409, PPC. In these circumstances applicability of the provisions of section 409, PPC to the case in hand has prima facie appeared to us to be suspect at this stage. There may be a possibility that the case against the petitioner may be hit by a judgment of this Court rendered in the case of Shahid Imran v. The State and others (2011 SCM R 1614). The investigating officer present before the Court has confirmed the fact that the petitioner has already joined the investigation. In the above-mentioned backdrop insistence of the local police upon arrest of the petitioner may smack of lack of bona fide on its part.
3. For what has been discussed above this petition is converted into an appeal and the same is allowed and consequently the petitioner is admitted to pre-arrest bail in the above-mentioned criminal case subject to furnishing bail bond in the sum of Rs, 1,00,000/- (Rupees one hundred Thousand only) with two sureties each in the like amount to the satisfaction of the learned Trial Court/Duty Judge.
Leave Petition Converted into Appeal and /Accused Admitted to Pre-Arrest Bail.