IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO

Cr. Bail Application No. S-252 of 2021

Applicants:                     Ahmed Ali alias Ali and another,

Through Mr. Khadim Hussain Khoso, advocate

Complainant:                 Aga Ahmed Khan Kharl(Called absent)

The State:                       Through Mr. Muhammad Noonari,

                                      Deputy Prosecutor General.

Date of hearing:              16-07-2021

Date of Decision:           16-07-2021

ORDER

Adnan-ul-Karim Memon, J.Through instant criminal bail application, the applicants are seeking post-arrest bail in Crime No. 42/2021, under Section 406,420,506(2), 34 P.P.C, registered at Police Station Market, Larkana.

2.       Notice of this bail application was served upon the complainant, however, he is called absent without any intimation in such circumstances, I have heard the learned counsel for the applicants as well as learned D.P.G representing the State.

3.       Prima-facie, the allegations against the applicants arising out of a Civil dispute pending adjudication between the parties before the learned I-Senior Civil Judge, Larkana in F.C Suit No.66 of 2021            (re: Sikandar Ali versus Abdul Majeed and others). The applicants being aggrieved by and dissatisfied with their arrest and subsequent rejection of their bail application No.27 of 2021 by the learned Civil Judge and Judicial Magistrate-III, Larkana as well as learned Additional Sessions Judge-II, Larkana vide order dated 26.05.2021, have approached this court for grant of post-arrest bail in the aforesaid crime. 

4.       At the very outset, it has been argued by the learned counsel for the applicants that the applicants have been falsely roped in this case against the facts and circumstances. Further contends that the applicants have no nexus with the crime alleged against them. Further averred that nothing has been recovered from the applicants during the investigation, hence they are entitled to the concession of post-arrest bail on the aforesaid grounds. He emphasized that if for arguments, the contents of the complaint are admitted to be true, even then it is a matter of civil dispute, which is purely civil and needs to be trashed out in trial after the recording of evidence; that there is a delay in lodging of F.I.R. without any plausible justification; that the offenses applied by the prosecution do not come within the ambit of the prohibitory clause of section 497 of the Cr.P.C. He prayed for allowing the instant bail application.

5.       On the other hand, the learned DPG argued that the Applicants are nominated in the crime report submitted by the prosecution. He further argued that the applicants committed a breach of trust, thus the offense charged against the applicants stood satisfied, however the same entails severe punishment, and therefore they are not entitled to the concession of post-arrest bail until the civil dispute, pending between the parties, is decided by the competent Court of law as discussed supra. He added that no malafide, ill will, or ulterior motive has been agitated or brought on record against the complainant or the police for false involvement of the applicants in this case. He further argued that the applicants have been declared guilty by the police during the investigation process, therefore, they are not entitled to the concession of post-arrest bail in the said crime.

6.       I have heard the learned counsel for the applicants and learned DPG from the state and have gone through the record with their assistance.

7.       After hearing the arguments of both the sides and perusing the record carefully, it has become transparent that the matter in hand, ex-facie, seems to be Civil, as it is evident from the contents of the F.I.R that there was civil transaction between the parties and both the parties agreed to sale and purchase some property in lieu of certain amount which was purportedly received by the applicant No.1 and other persons, however;  the complainant averred in his complaint that applicant Ahmed alias Ali and Imran issued threats of dire consequences to him thus the incident was reported to police on 11.5.2021.  This issue primarily has to be decided by the learned trial Court as well as about the application of section 406 of P.P.C. according to the facts and circumstances of the case after recording evidence. It is evident that the offence of criminal breach of trust as defined under S.405, P.P.C, punishable under S.406, P.P.C. was to be committed if the property (money) was given on trust and the same property was not returned. If a person gave money to others for investment in the business and an equivalent amount of money along with profit was to be returned by the latter then prima-facie, such business transaction was not to attract the provision of Sections 405 & 406 of P.P.C. Primarily such transactions was not of entrustment of property, but simply one of the investments of the property. Record further reflects that no date, time, or place of criminal intimidation by applicants was given in F.I.R. No relevant details of criminal intimidation were brought on record of the investigation. It is well-settled law that no one could be prosecuted based on vague and unspecified allegations.

8.       Prima-facie, the complainant had tried to convert a civil and business dispute in a criminal case to extract concession of civil matter; and the learned trial Court has to evaluate the same judiciously, independently.

9.       The intent behind the grant of bail is to safeguard the innocent person from the highhandedness of police/ complainant if any; and, very strong and exceptional grounds would be required to curtailing the liberty of the accused charged for, before completion of the trial, which otherwise is a precious right guaranteed under the Constitution of the country.

10.     Besides above In the case of Tariq Bashir V. The State (PLD 1995 SC 34) the Honorable Supreme Court has taken notice of stock of prevailing circumstances where under-trial prisoners are sent to judicial lock-up without releasing them on bail in non-bailable offences punishable with imprisonment of less than 10 years and held that “grant of bail in such offences is a rule and refusal shall be an exception, for which cogent and convincing reasons should be recorded.” While elaborating exceptions, albeit it was mentioned that if, there is a danger of the offence being repeated, if, the accused is released on bail, then grant of bail may be refused but it is further elaborated that such opinion of the Court shall not be founded on mere apprehension and self-assumed factors but the same must be supported by cogent reasons and material available on record and not to be based on Surmises and artificial or weak premise. Even otherwise to ensure that the accused may not repeat the same offence, if, released on bail, sufficient surety bonds shall be obtained through reliable sureties besides the legal position that repetition of the same offence would disentitle the accused to stay at large as bail granting order may be recalled in that event, therefore, such a ground should not be an absolute bar in the way of grant of bail. It may be noted that there is a sky-high difference between jail life and free life. If the accused person is ultimately acquitted in such cases then, no kind of compensation would be sufficient enough to repair the wrong caused to him due to his incarceration. It is settled principle of law that once the Legislature has conferred discretion on the Court to exercise jurisdiction in particular category of offences without placing any prohibition on such discretion.

11.     Once this Court has held in categorical terms that grant of bail in offenses not falling within the prohibitory limb of section 497 Cr.P.C. shall be a rule and refusal shall be an exception then, the subordinate Courts should follow this principle in its letter and spirit because principles of law enunciated by this Court under Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 is binding on all subordinate Courts. My view is supported by the decision rendered by the Honorable Supreme Court in the case of The State v. Syed Qaim Ali Shah (1992 SCMR 2192) and the famous case of Khan Asfandyar Wali and others v. Federation of Pakistan (PLD 2001 SC 607).

 12.    I expect the Courts below to adhere to these binding principles in future and not to act mechanically in the matter of granting or refusal of bail because liberty of citizen is involved in such matters, therefore, same should not be decided in vacuum and without proper judicial approach.

13.     In view of the facts and circumstances narrated above, I am of the considered view that learned trial Court has erred in appreciation of law on the subject while rejecting the post-arrest bail of the applicants, hence, the same is set at naught, as a consequent I am of the considered view that the case of the applicants is of further inquiry fully covered under section 497(2) Cr.PC, entitling for the concession of post-arrest bail.

14.     For the above reasons, this bail application is allowed. The applicants are enlarged on post-arrest bail in the crime No. 42/2021 of Police station Market, Larkana punishable for offenses under Section 406, 420, 506(2), 34 P.P.C, subject to furnishing their solvent surety in the sum of Rs.100, 000 (Rupees one hundred thousand) each and P.R bond in the like amount to the satisfaction of the learned trial Court.

15.     Before parting with this order, it is clarified that the findings given in this order are tentative and it will have no effect upon the merits of the case in any manner whatsoever.

16.     These are the reasons for my short order dated 16-07-2021, whereby the applicants were enlarged on post-arrest bail in the aforesaid crime.

JUDGE