Mian Muhammad Faisal Rasheed Vs The State etc

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

LAHORE.

JUDICIAL DEPARTMENT

Case No: Cr. Misc. No.5386-BC of 2019

Mian Muhammad Faisal Rasheed v. The State, etc.

S.No. of Date of Order with signature of Judge and that of parties or counsel where Order/ order/ necessary Proceeding proceeding

06.05.2019 Mr. Hassan Iqbal Warriach, Advocate for the petitioner. Mr. Tariq Javed, District Public Prosecutor with Amjad ASI and Ijaz SI.

Mr. Muhammad Akram Chaudhary, Advocate with respondent No.2.

Through the instant petition in terms of section 497(5) Cr.P.C, the petitioner (complainant) has sought recalling of order dated 27.11.2018 passed by the learned Addl. Sessions Judge, Lahore, wherein pre-arrest bail of respondent No.2 was confirmed in case FIR No.148/2018 dated 17.05.2018 registered u/s 489-F PPC at Police Station Model Town, Lahore.

2.Complainant/petitioner Mian Muhammad Faisal Rasheed put the machinery of law into motion by alleging therein that accused/respondent No.2 Sufyan Khalid Ghurki has received Rs.1,52,00,000/- in June 2015 in presence of witnesses with the commitment to return the same to the petitioner. Thereafter, on 02.11.2017 respondent No.2 has issued the disputed cheque for an amount of Rs.50,00,000/- in presence of another PW Abdur Rauf but the said cheque was dishonoured by the concerned bank on its presentation.

3.Learned counsel for the petitioner in support of instant petition submits that the learned Addl. Sessions Judge while deciding the bail application filed by respondent No.2 has appreciated the circumstances and evidence of the case in detail, which was not required while seized with the bail matter and the learned Court was only required to appraise it tentatively. Learned counsel for the petitioner pointed out another aspect of the case that learned Addl. Sessions Judge has also added snaps of case diaries/ziminies in the impugned order. Lastly submits that the learned Addl. Sessions Judge, Lahore has not observed any mala fide or ulterior motive on part of the complainant or the police, while lodging the FIR against respondent No.2, which is sina qua non for grant of extraordinary relief in shape of pre-arrest bail.

4.Learned counsel for the accused/respondent No.2 has vehemently opposed the arguments of learned counsel for the petitioner. Whereas, learned Law Officer opposed the impugned order.

5.Pro and contra arguments have been heard. Record perused.

6.After hearing the leaned counsel for the parties and perusing the record, it is straightway observed that a huge amount is involved in the instant case and while lodging FIR, the petitioner has also given the names of witnesses before whom the alleged amount of Rs.1,52,00,000/- was given to the respondent No.2. Both the eye witnesses, namely, Usman Farooqi and Ahmad Imran Kashif have also got their statements recorded u/s 161 Cr.P.C., wherein they categorically asserted that the petitioner has

handed over the said amount to respondent No.2 in their presence. Another aspect of the case is that the learned Addl. Sessions Judge, while confirming the ad-interim pre-arrest bail of respondent No.2 has passed a detailed order comprising over eight pages, in which learned Court has not only discussed the facts and evidence of the case in detail but also surprisingly imprinted the snaps of case diaries. Learned counsel for the petitioner while highlighting the background of the case apprises that when the bail application of respondent No.2 was fixed before the Court of Sessions for arguments, it was transferred at least four times from one Court to another. Yet there is another aspect of the case that while confirming ad interim pre-arrest bail, leaned Addl. Sessions Judge, Lahore has not highlighted and identified any element of mala fide or ulterior motive on part of the complainant or police towards respondent No.2, which is otherwise a condition precedent to award extraordinary relief in shape of pre-arrest bail. Reliance in this regard is placed on the judgment passed by the august Supreme Court of Pakistan in case of “MUKHTAR AHMAD v. The STATE and others” (2016 SCMR 2064), in which it is observed that;-

“This Court has repeatedly declared that the concession of pre-arrest bail cannot be allowed to an accused person unless the Court feels satisfied about seriousness of the accused person’s assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local Police but not a word about this crucial aspect of the matter is to be found in the impugned orders passed by the High Court in the present case.”

7.Keeping in view the case in its totality, the instant petition is hereby allowed and pre-arrest bail granting order dated 27.11.2018 passed by the learned Addl. Sessions Judge, Lahore is hereby recalled.

(MUHAMMAD WAHEED KHAN)

JUDGE

APPROVED FOR REPORTING

JUDGE

Sajid