C.M. No. 154 of 2022.
This is an application seeking permission to place additional documents on record. The application is allowed subject to all just and legal exceptions.
Main Case.
Through the instant petition, the Petitioner [Qamar Iqbal] is seeking post-arrest bail in FIR No.494/21 dated 29.12.2021 registered for the offences under Sections 411/419/420/468/471 PPC with Police Station Secretariat, Islamabad. However , Section 411 was added subsequently through Zimni No.04. Petitioner 's similar request has already been declined by the learned Judicial Magistrate as well as learned Additional District & Sessions Judge- West, Islamabad vide orders dated 08.02.2022 and 24.02.2022, respectively .
2. Brief facts, as per FIR, are that the Complainant [Anas Bin Arshid] through one of his acquaintances met with Asif Khan who at that time introduced himself as an employee of the Ministry of Interior and was purportedly deputed with Mr. Mehboob Ahmed Khan, Joint Secretary, Ministry of Interior. The said Asif Khan claimed that he could arrange government jobs. Complainant met him twice at Quetta caf situated in Ghori Town, Islamabad, along with his cousins namely Hamid, Faraz and his maternal uncle namely Muhammad Zaheer to gain employment in Capital Development Authority (CDA) against payment of rupees three lacs (Rs.
300,000/) each. As directed, the Complainant along with his above said cousins and maternal uncle showed up at Pakistan Secretariat D-Block, 4th floor, Ministry of Railways on 08.11.2021, where co-accused Asif Khan handed over the purported appointment letters to the Complainant and to his cousins as well after receiving an amount of Rs.300,000/- each. The Complainant paid the said amount through cheque bearing No.D91331316 of Meezan Bank Ltd., while his cousins paid the amount in cash. Asif Khan encashed the said cheque on the very same day. He asked them to conduct their medical checkup on 10.11.2021 and contact him for further process. When the Complainant reached Poly Clinic Islamabad for medical checkup the staff of the said hospital demanded Medical Request Letter to be addressed to Civil Surgeon. When Complainant called the co-accused Asif Khan and briefed him with the situation he replied that the staff of Hospital doing all this for gratification / bribe.
After that Complainant visited CDA Office where it has been came to his knowledg e that all the appointment letters are bogus and fake. Later on it revealed that the real name of Asif Khan is Shafi Ullah s/o Mir Ayaz Khan, who impersonated himself as Asif Khan, an employee of Ministry of Interior in order to commit fraud with the Complainant and his cousins. The Co-accused Shafi Ullah kept on seeking time for return of Complainant' s and his cousins money but later on disappeared.
3. Learned counsel for the Petitioner, inter alia, contended that the instant FIR has been registered against the Petitioner by concealing the true facts in order to harass and humiliate the Petitioner with malafide intentions and ulterior motives; that the case of the Complainant is false and the Petitioner did not commit any offence mentioned above; that the Petitioner is not nominated in FIR and no role has been attributed to him, in fact the FIR does not even mention that there was any unknown person present which could later be identified as the Petitioner; that there is a delay of almost two months in registration of FIR; that the facts as narrated in the FIR do not disclose any offence committed by the Petitioner; that no recovery of amount is required; that the Petitioner is behind bars since his arrest i.e. 24.01.2022; that the investigation has been finalized and no physical custody is required by the police; that the alleged offence fall outside the non-prohibitory clauses; that the participation in the offence yet to be proved and it can be proved after recording of evidence; that no chance of tampering of record and evidence; that the petitioner is previous non-convict and has no criminal record; that the case of the Petitioner is one of the further inquiry and probe. Learned counsel relied on Muhammad Ali Vs. The State, 2022 MLD 312 (Islamabad), Gul Muhammad Vs. The State, 2021 YLR Note 85, Haji Shahid Hussain Vs. The State, 2017 SCMR 616, Manzoor Ali Vs. The State, 2013 PCr.LJ 649, Shameel Ahmed Vs. The State, 2009 SCMR 174 and Tariq Bashir Vs. The State, PLD 1995 SC 34 .
4. On the other hand, learned State counsel submitted that while the Petitioner was under arrest in FIR 49 of 2021, he disclosed that he was also involved in the instant FIR i.e., No.494/21 dated 29.12.2021 registered for the offences under Sections 411/419/420/468/471 PPC with Police Station Secretariat, Islamabad and recovery of amounts has also been made from him. He submitted that the Petitioner is part of a gang and is nominated in FIR No.49/22 dated 20.01.2022 and FIR No.79/20 dated 10.01.2022 for the same and/or similar offences and FIR No.408/19 dated 17.10.2019 for offence under Section 376 PPC.
5. The learned counsel for the Complainant contended that there is no delay in filing the FIR and the alleged delay has been explained in the FIR itself whereby it has been stated that the co-accu sed had been in touch with the Complainant till a week ago; that letters have been recovered from the possession of the Petitioner which have been found to be fake upon verification; as such there is sufficient material available on record to connect the Petitioner with the commission of alleged offence. Learned counsel for Complainant prayed for dismissal of instant bail petition.
6. I have heard the learned counsel for the parties and also perused the record with their able assistance.
7. It is noted that the Petitioner was not named in the FIR rather it is alleged that he was nominated due to admission while under arrest in another FIR. Therefore, the matter is of further inquiry into the guilt of the Petitioner in respect of the instant FIR.
8. None of the alleged offences provide for punishment which would fall within the prohibitory clause of Section 497 Cr.P.C. thereby making it a matter in which grant of bail is a rule and refusal an exception as per Tariq Bashir and Others Versus The State, PLD 1995 Supreme Court 34 and Muhammad Tanvir Vs. State, PLD 2017 Supreme Court 733.
9. The grounds for the case to fall within the exceptions meriting denial of bail include (a) where there is a likelihood of abscondence of the accused; (b) where there is apprehension of the accused tampering with the prosecution evidence; (c) where there is a danger of the offence being repeated if the accused is released on bail; d) where the accused is a previous convict.
10. Admittedly , the Petitioner is not a prior convict and no apprehension has been shown that he will abscond or tamper with the evidence, if released on bail. As far as repetition of offence is concerned on account of the other FIRs, it is now settled law that mere registration of FIRs is not a bar to remedy of bail. Therefore none of the exceptions to the rule of bail are attracted in this case.
11. The upshot of the above discussion is that the Petitioner has successfully made out a prima facie case for his release on bail. Consequently , the instant bail application is allowed and the Petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs. 100,000/- (rupees one lac) along with surety in like amount to the satisfaction of the learned Trial Court.
12. All the observations made hereinab ove are tentative in nature and shall have no bearing on the final determination of guilt or innocence by the learned trial Court.