1. Tasneem Sultana, J:- Through this Bail Application, applicant, namely, Oaun Yazdani Mughal, seeks pre-arrest bail arising out of FIR No.38 of 2025, registered at police station Ferrer, South, Karachi, under Section 406, 34 PPC. Prior to filing instant bail application, applicant also approached to the trial Court for same relief, which was declined vide order dated 31.01.2025.
2. 2]. Precisely, facts relevant for disposal of instant criminal bail application are that on 22.01.2025, complainant Muhammad Imran lodged FIR, stating therein that on 05.10.2024 due to his ill health and financial constraints, his wife gave 2.5 tola gold including a locket, 2 bangles, and a ring for sale, his son Muhammad Areeb (16 years old) queried from market, its price assessed more than Rs.5,00,00/- but goldsmith refused to take without receipt, then contacted one Ayaan his friend, who introduced the son of complainant with applicant (Oaun) through his another friend co- accused Bilal and on his assurance the son of complainant gave gold ornaments to applicant
(Oaun) but instead of assessing the value of the gold ornaments, he sold the said gold ornaments in the sum of Rs.1,00,000/- and gave Rs. 89,000/- after deducting commission when complainant side demanding return of same gold ornaments, the applicant had first kept them on false hopes and later on extended threats for dire consequences.
3. 3]. Learned Counsel for the applicant contended that the applicant has falsely been implicated in this case by the complainant with malafide intention and ulterior motives; that the FIR was lodged with the delay of three months and 17 days without explanatory clause which creates serious doubts in the prosecution case; that applicant has never been met with Muhammad Areeb and Muhammad Ayaan, while he only know co-accused Bilal, who usually came at the Cabin of applicant; that actual culprits are the son of complainant, Bilal and Ayaan who sold the gold at somewhere else; that applicant is regularly appearing before Trial Court; that interim pre-arrest bail order dated 06.02.2025, may be confirmed.
4. 4]. Conversely, learned Assistant Prosecutor General Sindh, duly assisted by learned Counsel for the complainant, has opposed for confirmation of interim pre-arrest bail to the applicant on the ground that sufficient material available on record and his name is appearing in FIR with specific role; hence, prayed for the dismissal of bail application.
5. 5]. Heard the arguments of learned Counsel for the parties and perused the material available on record.
6. 6]. It reflects from the record that occurrence allegedly took place on 05.10.2024, whereas FIR was recorded on 22.01.2025, after delay of more than two months without explaining any sufficient reason. Such delay in lodging of FIR falls within the ambit of deliberation and after thought therefore, it is always considered to be fatal for the prosecution. The Apex Court in the case of Farman Ahmed v. Muhammad Inayat, [2007 SCMR 1825] has held in respect of a 17 hours delay in FIR provides sufficient time for deliberation and consultation when complainant has given no explanation for delay in lodging the FIR. It is enough time for complainant to fabricate the story, therefore, possibility cannot be ruled out qua false implication of the respondent. It is also settled law that unexplained delay of a 17 hours in making FIR not explained leads to inference that the occurrence was un-witnessed.
7. 7]. It further reflects that the son of complainant through co-accused Bilal allegedly gave gold ornaments to the applicant either for sale or assessing value, so allegations levelled against the applicant in my tentative opinion, the Trial Court has to see whether Section 406 PPC is attracted or otherwise and the application of the same would be resolved by the Trial Court after recording evidence, thus matter calls for further enquiry. More so, Section 406 PPC being punishable for seven years, do not fall within the prohibitory clause of Section 497(1) Cr.P.C. The Apex Court in the case of Iftikhar Ahmed v. The State, [PLD 2021 SC 799], has held in categorical terms that granting of bail in offences not falling within the prohibitory limb of Section 497 Cr.P.C. shall be a rule and refusal shall be exception and directed the Courts of Country to follow this principle in its letter and spirit because principles of law enunciates by the Supreme Court are constitutionally binding [under Article 189] on all Courts throughout the Country. The applicant/accused is regularly attending the Trial Court and no complaint of misuse of concession of bail or tempering of the prosecution evidence has been pointed out.
8. 8]. In view of above facts and circumstances, instant bail application is allowed; consequently, interim pre-arrest bail granted to applicant vide order dated 06.02.2025 is hereby confirmed on same terms and conditions. Applicant is directed to appear before the Trial Court on each and every date of hearing to face the trial.
9. 9]. It need not to reiterate that the observation(s) made hereinabove is/are tentative in nature and shall not prejudice the case of either party during trial. However, the learned Trial Court may proceed against the Applicant, if he will be found misusing the concession of bail.
10. 10] This Criminal Bail Application is disposed of.
11. Tasneem Sultana, J:- Through this Bail Application, applicant, namely, Oaun Yazdani Mughal, seeks pre-arrest bail arising out of FIR No.38 of 2025, registered at police station Ferrer, South, Karachi, under Section 406, 34 PPC. Prior to filing instant bail application, applicant also approached to the trial Court for same relief, which was declined vide order dated 31.01.2025.
12. 2]. The details and particulars of the FIR are already available in the bail application and FIR, same could be gathered from the copy of FIR attached with such application, hence, needs not to reproduce the same hereunder.
13. 3]. Learned Counsel for the applicant contends that the applicant has falsely been implicated in this case by the complainant with malafide intention and ulterior motives; that the FIR was lodged with the delay of three months and 17 days without explanatory clause which creates serious doubts in the prosecution case; that applicant has never been met with Muhammad Areeb and Muhammad Ayaan, while he only know co-accused Bilal, who usually came at the Cabin of applicant; that actual culprits are the son of complainant; that Bilal and Ayaan who sold the gold at somewhere else; that applicant is regularly appearing before Trial Court; that interim pre-arrest bail order dated 06.02.2025, may be confirmed.
14. 4]. Conversely, learned Assistant Prosecutor General Sindh, duly assisted by learned Counsel for the complainant, has opposed for confirmation of interim pre-arrest bail to the applicant on the ground that sufficient material available on record and his name is appearing in FIR with specific role; hence, prayed for the dismissal of bail application.
15. 5]. Heard the arguments of learned Counsel for the parties and perused the material available on record.
16. 6]. It reflects from the record that occurrence allegedly took place on 05.10.2024, whereas FIR was recorded on 22.01.2025, after delay of more than two months without explaining any sufficient reason, such delay in lodging of FIR falls within the ambit of deliberation and after thought therefore, it may consider fatal for the case of prosecution. It further reflects that the son of complainant through co-accused Bilal allegedly gave gold ornaments to the applicant either for sale or assessing value, so allegations levelled against the applicant in my tentative opinion, the Trial Court has to see whether Section 406 PPC is attractive or otherwise and the application of the same would be resolved by the Trial Court after recording evidence. More so, Section 406 PPC being punishable for seven years, do not fall within the prohibitory clause of Section 497(1) Cr.P.C.
17. The Apex Court in the case of Iftikhar Ahmed v. The State [PLD 2021 SC 799], has held in categorical terms that granting of bail in offences not falling within the prohibitory limb of Section 497 Cr.P.C. shall be a rule and refusal shall be exception and directed the Courts of Country to follow this principle in its letter and spirit because principles of law enunciates by the Supreme Court are constitutionally binding [under Article 189] on all Courts throughout the Country. The applicant/accused is regularly attending the Trial Court and no complaint of misuse of concession of bail or tempering of the prosecution evidence has been pointed out.
18. 7]. The upshot of above discussion is that the case against applicant requires further inquiry. In such circumstances, instant bail application is allowed; consequently, interim pre-arrest bail granted to applicant vide order dated 06.02.2025 is hereby confirmed on same terms and conditions. Applicant is directed to appear before the Trial Court on each and every date of hearing to face the trial.
19. 8]. It need not to reiterate that the observation(s) made hereinabove is/are tentative in nature and shall not prejudice the case of either party during trial. However, the learned Trial Court may proceed against the Applicant, if he will be found misusing the concession of bail.
20. 9] This Criminal Bail Application is disposed of.
21. AMJAD ALI SAHITO, J.- By means of this bail application, applicant/accused above named seeks pre-arrest bail in case, emanating from Crime No.86 of 2023, registered at Police Station Memon Goth, Karachi, for offence under Section 489-F PPC, after his such bail plea has been declined by the learned Additional Sessions Judge-VIII, Malir Karachi, by dismissing his bail application vide order dated 01.04.2023.
22. 2]. The details and particulars of the FIR are already available in the bail application and FIR, same could be gathered from the copy of FIR attached with such application, hence, needs not to reproduce the same hereunder.
23. 3]. Per learned counsel for the applicant, the applicant is innocent and has falsely been implicated in this case; that FIR is delayed about two years and no plausible explanation was given by the complainant; that there is a dispute between the parties and such litigation is also pending before the competent court of law; that the applicant is no more required for further investigation. He lastly prays for confirmation of bail.
24. 4]. On the other hand, learned counsel for the complainant as well as learned Addl. P.G. opposes for confirmation of bail on the ground that no litigation is pending before any court of law.
25. 5]. Heard and perused. The case of the prosecution is that the complainant and his family members are doing business of sale and purchase of buffaloes. They have sold 45 buffaloes and one cow to the father of applicant. The deal was accomplished at the rate of Rs.152,000/- for each buffaloes while total amount of Rs.72,92,000/- out of which the applicant has paid cash amount of Rs.40,42,000/- and for the remaining amount, he has given two cheques of Rs.450,000/- to the complainant, which on presentation became dishonoured on the ground that payment was stopped by the applicant, as such, ingredients of Section 489-F PPC is very much applicable in this case. Further, while issuing cheques to the complainant, the applicant knew that he had stopped the payment from his account, as such, he has committed cheating and fraud with the complainant. The applicant has also not denied from issuance of cheque as well as signature. The ocular evidence finds support from the other evidence. At bail stage, only tentative assessment is to be made. No m alafide or ill-will or enmity has been pleaded by the applicant/accused, which could be the ground for false implication in this case.
6. Further, the concession of pre-arrest bail cannot be allowed to an accused person unless the Court feels satisfied with the 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 found as no mala fide is made on the part of the complainant to believe that the applicant/accused has been implicated in this case falsely. In this context, the reliance is placed to the case of 'Rana Abdul Khaliq v. The STATE and others' [2019 SCMR 1129]. In addition to the above, I would like to mention that grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is a diversion of the usual course of law, arrest in cognizable cases; protection to the innocent being hounded on trump up charges through abuse of process of law, therefore, an applicant seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide, it is not a substitute for post-arrest bail in every run of the mill criminal case as it seriously hampers the course of the investigation.
7. In view of the above, learned counsel for the applicant has failed to make out a case for grant of bail in terms of subsection 2 of Section 497 Cr.P.C. Resultantly, the instant bail application is dismissed. The interim pre-arrest bail granted to the applicant/ accused vide order dated 05.04.2023 is hereby recalled.
8. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial Court while deciding the case of the applicant on merit. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.