Mst. NARGIS vs STATE
The petitioner, Mst. Nargis, sought pre-arrest bail in a case registered under Section 380 of the Pakistan Penal Code 1860 regarding the alleged theft of a gold chain. The core legal question was whether the petitioner made out a case for the extraordinary concession of pre-arrest bail, particularly in view of the alleged delay in lodging the FIR and claims of mala fides. The Lahore High Court held that the delay was adequately explained in the FIR, that no apparent mala fide on the part of the complainant was established, and that the petitioner failed to join the investigation. Consequently, the court dismissed the petition and recalled the ad-interim pre-arrest bail. The key principle laid down is that pre-arrest bail cannot be granted without demonstrating clear mala fides on the part of the complainant or police, and unexplained delays do not automatically warrant pre-arrest relief when the delay is addressed in the initial report.
- Whether delay in lodging an FIR warrants the grant of pre-arrest bail when the delay is explained in the FIR itself?
- Does the absence of mala fides on the part of the complainant disentitle an accused to the extraordinary concession of pre-arrest bail?
- Is pre-arrest bail maintainable when the accused fails to join the police investigation?
- Section 380, Pakistan Penal Code 1860
ORDER
Petitioner Mst. Nargis wife of Nawab seeks her pre-arrest bail in case FIR No, 483/2003 registered under Section 380 PPC, at Police Station Mughalpura, Lahore, on 30.07.2003. The FIR was lodged by one Simab Chaudhry, wife of Ch. Fazal Ahmad.
2. The story as unfolded in the FIR was that the petitioner used to come to her place for cosmetic waxing; that six months prior to registration of the case while the petitioner was visiting her home for the said purpose, stole a gold chain weighing 4-tolas; that the petitioner confessed having stolen the gold chain and beseeched that she may be given time to pay the amount of the said chain but she failed to live up to her promise and declined to make good her loss; that neither she was returning the chain of the value of Rs, 28,000/- nor was she fulfilling her commitment.
Accordingly the instant case was registered.
3. The petitioner obtained ad-interim pre-arrest bail.from the Court of Sessions. It was, however, not confirmed vide order dated 16.10.2003. Hence this petition.
4. The learned counsel for the petitioner in support of his plea for pre-arrest bail argued that there was a delay of six months in lodging the FIR and according to him the said delay has not been convincingly explained; that the FIR was an afterthought since the complainant owed an amount of Rs, 4,800/- to the petitioner on account of her waxing charges; that the investigation has not been carried out in accordance with law and the petitioner has not been joined in investigation; that five respectable persons of the area have sworn affidavits that the petitioner is innocent and has never indulged in any criminal activity. The learned counsel has relied on a case titled; (Syed)
Shahid Abbas versus The State, 1999 Pakistan Current Criminal Rulings, 259 (Lahore), wherein bail was granted to the petitioner on account of delay in lodging of FIR. Similarly he relied on another case titled, Mubarik Ali versus the State, 1999 Pakistan Current Criminal Rulings 238 (Lahore), wherein bail in a case registered under Section 5(2) of the Prevention of Corruption Act, 1947 was granted on the ground that perusal of the FIR did not disclose the commission of an offence under the said penal provision.
5. On the other hand the learned counsel for the State has vehemently opposed the grant of pre- arrest bail to the petitioner. He submitted that the delay in lodging the FIR stands fully explained in the FIR itself. He added that the basic ingredient of pre-arrest bail i,e, malice against the complainant or the police is not forthcoming and on this ground alone the extraordinary concession of pre-arrest bail cannot be extended to the petitioner. The learned State counsel also submitted that the petitioner has not joined the investigation and had been playing fast and loose with the process of law by submitting various medical certificates.
6. I have considered the arguments of the learned counsel for the parties at length.
7. The precedent cases relied by the learned counsel for the petitioner do not in any manner advance his case. The facts and circumstances in the case reported in the former citation are entirely different and moreover it was a petition for post arrest bail whereas the latter citation again a post arrest bail petition was a case under the Prevention of Corruption Act, 1947- and has no relevance with the case in hand. There is no apparent mala fide on the part of the complainant to have faisely implicated the petitioner. The delay in lodging the. FIR has been explained in the FIR itself and on this score no benefit can be extended to the petitioner. I do not find it a fit case for the grant of extraordinary concession of pre-arrest bail. This application stands dismissed and the order dated 17.11.2003 whereby ad interim pre-arrest bail was granted to the petitioner is hereby recalled.