Qutab Ali Shah vs The State and another
The petitioner sought post-arrest bail in case FIR No. 71 of 2019 registered under sections 408 and 34 of the Pakistan Penal Code at Police Station Tarnol, Islamabad, relating to an alleged criminal breach of trust and embezzlement. The core legal question was whether the petitioner was entitled to the concession of bail when the alleged offence did not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 and investigation was complete. The Islamabad High Court accepted the petition and admitted the petitioner to bail, holding that offences falling outside the prohibitory clause should generally be considered favorably for bail unless exceptional circumstances exist, and that unjustified incarceration cannot be adequately compensated upon ultimate acquittal. The key principle laid down is that where an offence does not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898, the grant of bail is the rule and its refusal is an exception.
- Whether bail should be granted when an offence falls outside the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Is an accused entitled to post-arrest bail when investigation is complete and no exceptional circumstances for refusal exist?
- Does a case of further inquiry warrant the grant of bail under section 497 of the Code of Criminal Procedure 1898?
- Section 408, Pakistan Penal Code
- Section 34, Pakistan Penal Code
- Section 497, Code of Criminal Procedure 1898
ORDER
TARIQ MEHMOOD JAHANGIRI, J.---Through the instant petition, the petitioner seeks bail after arrest in case FIR No. 71/2019, dated 14.02.2019, offences under sections 408/34, P.P.C., registered at Police Station Tarnol, Islamabad.
2. Brief facts of the case are that the petitioner along with co-accused i.e. Adil Bashir and Shaheen Haider have committed criminal breach of trust and embezzled an amount of Rs. 1218857/-, the accused was arrested and after completion of investigation he was sent to judicial lock up.
3. Learned counsel for petitioner contend s that there is no evidence against the petitioner; that the petitioner has falsely been involved in this case; that the petitioner is previously non-convict; that the offence does not fall under the prohibitory clause of section 497, Cr.P.C. and that there is an inordinate delay of about 03-months in registration of the FIR.
4. On the other hand, learned counsel for the complainant contends that the accused has committed an embezzlement of huge amount and the evidence is available against him. Petitioner/accused has returned an amount of Rs. 4,000,00/- (Four Hundred Thousand only) to the complainant and produced stamp paper , therefore, he is not entitled for bail after arrest.
5. Arguments heard, record perused.
6. Perusal of the record reveals that investigation in the case has been completed and= there is no evidence against the petitioner/accused except his own statement before the police. The offence does not fall within the prohibitory clause of section 497, Cr.P.C. Reliance is placed upon "2020 SCMR 1258 , 2020 SCMR 717, PLD 2017 SC 733, 2016 SCMR 1439 and 2011 SCMR 1708 "; where it is held that where a case fell within non prohibitory clause of section 497, Cr.P.C. the concession of granting bail B must be favorably considered and should only denied in the exceptional circumstances.
7. I do not find this to be a case where it should be refused as an exception. Ultimate conviction can repair the wrong caused by mistaken relief but no satisfactory reparation can be offered to the accused for his unjustified incarceration if he is acquitted ultimately .
8. A tentative assessment of record shows that present petitioner has made out a case of further inquiry .
9. In view of above, the instant petition is accepted and the petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs. 1,00,000/- (One Hundred Thousand only) with one surety in the like amount to the satisfaction of learned trial Court.
10. Needless to mention that, this is a tentative assessment which shall not af fect the trial of case in any manner .