Muhammad Afzal vs The State etc.

Form No.HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT

Bahawalpur Bench, Bahawalpur

JUDICIAL DEPARTMENT

Crl. Misc. No. 5332-B/2025

Muhammad Afzal Vs The State and another

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

16.12.2025 Sardar Afzaal Ahmad Mudaher, Advocate, with the Petitioner. Jam Waheed Ahmad, Deputy Prosecutor General, with Asim/SI. Malik Muhammad Altaf Nawaz, Advocate, for the Complainant.

Tariq Saleem Sheikh, J.– Maqbool Ahmad (the “Complainant”) lodged FIR No. 262/2024 at Police Station City Haroonabad, District Bahawalnagar, against the Petitioner, stating that he owned two petrol stations, one situated at Chak No. 90/5R and the other near the General Bus Stand, Haroonabad. He had employed the Petitioner as Munshi (manager) for about ten years. In that capacity, he maintained the accounts of the petrol stations, dealt with bank accounts, and handled cash transactions. The Complainant alleged that the Petitioner abused his position and embezzled an amount of Rs.21,400,000/- from his bank accounts. He further alleged that the Petitioner also removed certain leaves from the cheque books and stole various registers kept in his custody. On 11.08.2023, he dismissed him from service after learning of the alleged fraud. According to the Complainant, the Petitioner thereafter misused Cheque No. 08708574, entered a fictitious amount of Rs.700,000/- therein, and presented it to Khushhali Microfinance Bank Limited, but it was dishonoured. The Petitioner then approached the Ex-officio Justice of Peace under section 22-A Cr.P.C. for registration of a case against the Complainant under section 489-F PPC, which was dismissed. The Complainant further alleged that he subsequently came to know that, before his dismissal, the Petitioner had also misused two other cheques by forging his signature and had unlawfully withdrawn Rs.742,000/- from his bank accounts.

2.FIR No. 262/2024 was originally registered under section 381 PPC. This Court admitted the Petitioner to pre-arrest bail vide order dated 09.09.2024 passed in Crl. Misc. No. 3582-B/2024. During the investigation, the police added sections 408, 420, 468 and 471 PPC to the FIR. The Petitioner then applied to the Court of Session for pre-arrest bail. The Additional Sessions Judge, Haroonabad, dismissed his application as not maintainable vide order dated 09.04.2025, holding that he had “no jurisdiction to entertain this application and modify the order of the superior courts.” In consequence, the Complainant has filed Crl. Misc. No. 2249-CB-2025/BWP before this Court seeking cancellation of the Petitioner’s bail, which is pending adjudication. Separately, the Petitioner has moved this application for pre-arrest bail.

3.The office has raised an objection that second application for pre-arrest bail is not maintainable, noting that the Petitioner’s first application (Crl. Misc. No.3582-B/2024) has already been allowed on

4.Section 154 Cr.P.C. mandates that every information relating to the commission of a cognizable offence, if given orally to an officer-in- charge of a police station, shall be reduced to writing by him or under his direction and read over to the informant. Every such information, whether given in writing or reduced to writing, shall be signed by the person giving it. The substance thereof shall be entered in the prescribed book. The officer-in-charge of the police station is expected to apply his mind to the facts stated before him, determine the offence which they disclose, and mention the relevant penal provision in the FIR. However, it is possible that an incorrect section may be cited at the time of registration, or that the material collected during investigation may disclose another or additional offence. In such a situation, the Investigating Officer is competent to add or substitute the relevant provision. The question that arises here is whether an accused who has already been admitted to bail may be arrested right away merely because new offences have subsequently been added.

5.In Waqar Ahmed and another v. Chairman, National Accountability Bureau, and another (PLD 2015 Sindh 295), a Division Bench of the Sindh High Court held that where, after the registration of

the FIR, an additional offence is incorporated or cognizance of a further offence is taken, the bail granted earlier does not automatically extend to the newly-added offence. The accused must seek bail in respect of that offence. By way of illustration, the Court observed that where bail is granted in a case under section 324 PPC, but the injured person subsequently succumbs to the injuries and section 302 PPC is attracted, the accused cannot continue on bail as of right in respect of the graver offence. At the same time, he cannot be committed to custody straightaway. Fairness requires that he should be given notice and afforded an opportunity of hearing before any adverse order is passed. The Court further clarified that: (i) release on bail is always offence- specific; (ii) the court must have jurisdiction with reference to the offence, and where a graver offence is added or cognizance thereof is taken, the matter must be reconsidered afresh within the prescribed parameters after notice to the accused; (iii) a bail order is effective only in respect of the case in which it is issued and the offences specified in the order; (iv) the court subsequently seized of the matter must either take fresh bonds to its satisfaction or satisfy itself that the bonds earlier executed sufficiently cover the accused’s appearance before that court, so as to avoid any later plea by the surety that he was not bound to produce the accused before such court and that no breach of bond was committed; and (v) where only a bond has been executed, the court before which the accused is required to appear may forfeit the bond and proceed against the surety under section 514 Cr.P.C. in case of default, without reference to the court that originally granted bail.

6.This Court followed the above view in Mujtaba Saleem Butt v. Incharge Investigation etc. (2024 PCr.LJ 1568 : PLJ 2024 Cr.C. 532), observing that allowing the police to arrest an accused who has already been granted bail merely by adding new offences, without first seeking cancellation of that bail, would effectively enable law enforcement to circumvent judicial orders and render the grant of bail illusory. It would enable the police to detain an accused indefinitely simply by adding new charges. This not only infringes the accused’s constitutional right to liberty, but also offends the requirements of due process and the rule of law. The Court held that this course must be rejected. If the prosecution

considers custody necessary after the addition of new offences, it must seek cancellation of bail on lawful grounds. The burden of justification would then rest on the prosecution, and the accused would have an opportunity to be heard.

7.The above view finds support from Rule 26.21(6) of the Police Rules 1934 which is reproduced as under:

Bail and recognizance. –

(6)No Police Officer has power to re-arrest an accused person who has been released on bail under section 497, Code of Criminal Procedure. When re-arrest is deemed necessary, the police shall apply to a competent Court for the cancellation of the bail bond and the issue of a warrant in accordance with the provisions of section 497(5), Code of Criminal Procedure."

8.Although Rule 26.21(6) refers to an accused released on bail under section 497 Cr.P.C., the principle underlying the rule is not confined to post-arrest bail. Its object is to prevent the police from arresting or re-arresting a person who is protected by a judicial order of bail without first approaching the competent court. That rationale applies with equal force where an accused has been granted pre-arrest bail under section 498 Cr.P.C. This construction preserves both the authority of the judicial order and the power of the court to reassess the matter where the circumstances so require.

9.The Supreme Court of India (SCI) has also addressed this issue in several cases. In Prahlad Singh Bhati v. NCT, Delhi, and another, (2001) 4 SCC 280, it held that where the nature of the offence changes, and a minor offence is altered to a graver offence, the accused may not claim continued liberty merely on the strength of the earlier bail order. In Hamida v. Rashid alias Rasheed and others, (2008) 1 SCC 474, it was held that, upon the addition of a serious non-bailable offence, the accused is required to surrender and apply for bail in respect of the newly added offence. Bail granted before the addition of a new non-bailable offence does not enure to the benefit of the accused in respect of that offence.

10.In Pradeep Ram v. The State of Jharkhand (AIR 2019 SC 3193), the SCI held:

Crl. Misc. No. 5332-B/2025 5

“29. In view of the foregoing discussions, we arrive at the following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:

(i)The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In the event of refusal of bail, the accused can certainly be arrested.

(ii)The investigating agency can seek an order from the court under Section 437(5)1 or 439(2)2 [of the Indian Code of Criminal Procedure 1973] for the arrest of the accused and his custody.

(iii)The court, in exercise of power under Section 437(5) or 439(2) [of the Indian Code of Criminal Procedure 1973], can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The court in exercise of power under Section 437(5) as well as Section 439(2) [of the Indian Code of Criminal Procedure 1973] can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.

(iv)In a case where an accused has already been granted bail, the investigating authority, on addition of an offence or offences, may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the court which had granted the bail.”

11.Section 437(5) of the Indian Code of 1973 is broadly comparable to our section 497(5) Cr.P.C. Both provisions proceed on the premise that, after a person has been released on bail, the question whether he should be taken back into custody is to be determined by the court and not by the investigating agency acting on its own. In fact, Pradeep Ram was relied upon in Mujtaba Saleem Butt for this very proposition.

12.It is generally stated that whenever a court orders that an accused person in a particular FIR be released on bail, the order necessarily pertains to that particular FIR in its entirety. (See: Mst. Shahida Parveen v. The State and another (1995 MLD 1082), and Waris Khan v. Khasdar alias Tor Khan and another (2018 PCr.LJ Note 196). However, that principle applies where the offences before the court at the time of grant of bail remain substantially the same. It does not govern a situation where, after the grant of bail, new or graver offences are added during the investigation. In such circumstances, the Section 437(5) of the Indian Code of Criminal Procedure 1973 is reproduced below for ready reference:

(5)Any Court which has released a person on bail under sub-section (1) or sub-section (2) [of section 437], may, if it considers it necessary to do so, direct that such person be arrested and commit him to custody.

Section 439(2) of the Indian Code of Criminal Procedure 1973 reads as follows:

(2)A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

matter requires fresh consideration by the competent court in relation to the newly-added offences.

13.In view of the above, the office objection is overruled. It is necessary to point out that the Additional Sessions Judge was correct to the extent that a bailed-out accused could not be arrested merely because new offences have been added during investigation, unless the matter is brought before the competent court in accordance with law. However, he fell in error in holding that he had no jurisdiction to entertain the Petitioner’s application for pre-arrest bail. The Petitioner had approached the Sessions Court not for modification of this Court’s earlier order, but for protection against arrest in respect of offences subsequently added during the investigation. The application, therefore, required adjudication on its own merits. The dismissal of the application on the ground of lack of jurisdiction was not legally sustainable.

14.Turning to the merits of the case, it may first be noted that when the Petitioner approached this Court in the previous round, the FIR mentioned only section 381 PPC. While deciding Crl. Misc. No. 3582-B/2024, this Court recorded in paragraph 4 of the order dated 09.09.2024 that the Investigating Officer, who was present before it, had stated that the case was then being investigated only to the extent of the allegation regarding theft of cheque leaves and registers, and that the remaining allegation that the Petitioner had dishonestly misappropriated Rs.21,400,000/- was not investigated. The Complainant was dissatisfied and applied for change of investigation. The competent authority accepted his request and transferred the matter to the SP/SDPO, Chishtian Circle. The new Investigating Officer, after examining the material, added sections 408, 420, 468 and 471 PPC to the FIR vide Case Diary No. 16 dated 14.03.2025. He concluded that there was sufficient incriminating material against the Petitioner and that the allegations of theft, misappropriation, cheating and forgery were, prima facie, made out.

15.Admittedly, the Complainant had employed the Petitioner as manager. According to the prosecution, the Petitioner had access to the Complainant’s accounts and was entrusted with his cheque books

and business records. He is alleged to have misused that position by removing cheque leaves, forging signatures, withdrawing amounts and misappropriating funds. The case, therefore, is not confined to the accusation of theft, as earlier considered by the investigating agency, but concerns an alleged financial fraud committed through abuse of a position of trust. These allegations now find support from the material referred to in the case diary and, by their nature, require further examination, including recovery of record, verification of banking transactions and forensic analysis. Grant of pre-arrest bail in such circumstances may impede the course of investigation. No mala fide or ulterior motive sufficient to justify the extraordinary relief of pre-arrest bail has been made out. Nor has any exceptional circumstance been shown which would warrant its continuation. Accordingly, this application is dismissed.

(Tariq Saleem Sheikh) Judge Ahsan

Approved for reporting

Judge