SHOAIB ALI Versus State
ORDER
FAROOQ HAIDER, J.--- Shoaib Ali petitioner through this petition has sought pre-arrest bail in case arising out of FIR No.307/2020 dated 13.06.2020 registered under section 406, P.P.C. at Police Station: City Pattoki, District Kasur.
2. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the record with their able assistance, it has been noticed that as per allegation levelled in the FIR the complainant paid Rs.16,00,000/- to the petitioner and his other co-accused persons as trust ( ) for the purpose of purchasing plots and when after sometime he inquired from accused persons about purchase of said plots and demanded his aforementioned amount back then accused persons refused to pay said amount. On Court's query, learned Deputy Prosecutor General under instructions of Muhammad Zafar Ullah, S.I. (investigating officer of the case, present in Court) and after himself going through the record apprises that as per case diary No.18 dated 08.05.2021 it was concluded during investigation that a bargain ( ) for 2-kanals of land was made between the complainant and all accused persons and Rs.16,00,000/- were given by the complainant to the accused persons as advance for the same but accused persons denied to give the plots to the complainant. In view of above, it is crystal clear that aforementioned amount was paid as advance for purchasing aforementioned plots and when said plots have not been given to the complainant then instant case has been got registered, therefore, prima facie this is a civil transaction and not the case of "criminal breach of trust" defined under section 405, P.P.C. and punishable under section 406, P.P.C. It further prima facie reflects that the complainant after joining hands with the police has tried to convert a civil transaction into a criminal one through registration of this case, which fact itself reflects mala fide intention on part of the prosecution. When aforementioned circumstances are taken into consideration in totality then reasonable grounds are not available on record to connect the petitioner with the commission of alleged offence and applicability of section 406, P.P.C. to this case itself requires further probe and case of the prosecution against the petitioner falls within the ambit of section 497(2) Cr.P.C. Even then insistence of the investigating officer for arrest of the accused person in the case shows mala fide intention on part of prosecution; in this regard, guidance has been sought from the case of "Shahzada Qaisar
Arfat alias Qaiser v. The State and another" (PLD 2021 Supreme Court 708); relevant portions whereof are hereby reproduced:--
"4. .
The learned High Court did not appreciate that the "mala fide" being a state of mind cannot always be proved through direct evidence, and it is often to be inferred from the facts and circumstances of the case."
"6. The power of the High Courts and the Courts of Sessions to grant pre-arrest bail, first and foremost, must be examined in the constitutional context of liberty, dignity, due process and fair trial. Pre-arrest bail is in the nature of a check on the police power to arrest a person. The non-availability of incriminating material against the accused or non-existence of a sufficient ground including a valid purpose for making arrest of the accused person in a case by the investigating officer would as a corollary be a ground for admitting the accused to pre-arrest bail, and vice versa. Reluctance of the courts in admitting the accused persons to pre-arrest bail by treating such a relief as an extraordinary one without examining whether there is sufficient incriminating material available on record to connect the accused with the commission of the alleged offence and for what purpose his arrest and detention is required during investigation or trial of the case, and their insistence only on showing mala fide on part of the complainant or the Police for granting pre-arrest bail does not appear to be correct, especially after recognition of the right to fair trial as a fundamental right under Article 10A of Constitution of Pakistan, 1973. Protection against arbitrary arrest and detention is part of the right to liberty and fair trial. This Court has, in many cases granted pre-arrest bail to accused persons after finding that there are no reasonable grounds for believing their involvement in the commission of the alleged offences and has not required independent proof of mala fide on part of the Police or the complainant before granting such relief. Despite non-availability of the incriminating material against the accused, his implication by the complainant and the insistence of the Police to arrest him are the circumstances which by themselves indicate the mala fide on the part of the complainant and the Police, and the accused need not lead any other evidence to prove mala fide on their part.
(emphasis added).
3. In view of what has been discussed above, instant petition filed by the petitioner for grant of pre-arrest bail in the case, is allowed, ad-interim pre-arrest bail already granted to him by this Court vide order dated 26.05.2021 is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.200,000/- (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of learned trial court within a period of fifteen days from today.
4. It is, however, clarified that observations made herein are just tentative in nature and strictly confined to the disposal of this bail petition.
SA/S-78/L Bail confirmed.