MUHAMMAD ASIF, J. Through the instant petition, petitioner namely Usama Najam has prayed for post-arrest bail in case FIR No. 515, dated 03.06.2024, under Sections 406 PPC registered at Police Station Shalimar, Islamabad.
2. As per the allegations contained in the FIR, the complainant booked a vehicle (Honda Vezel) and paid an amount of Rs. 7,150,000/- to Japan Motors, located at F-10, Islamabad. It is alleged that the petitioner undertook to deliver the said vehicle by 15.02.2024; however, the petitioner failed to fulfill this commitment.
3. Learned counsel for the petitioner argued that the petitioner is behind the bars since his arrest.
The bail application of the petitioner was dismissed by the Court of learned Judicial Magistrate as well as learned Additional Sessions Judge on 08.03.2025 and 26.03.2025; that the petitioner is non- convict and non- record holder; that the police had completed the investigation in the instant case and petitioner is no more required for further probe; and that the case of the petitioner is one of further inquiry and the alleged offence does not fall within the ambit of prohibitory clause of section 497 Cr.P.C, therefore, entitled to the concession of post arrest bail.
4. On the other hand, learned State Counsel repelled the above submissions by arguing that sufficient incriminating material is available on record which prima facie connects the petitioner with the commission of the alleged offence, and the petitioner is also involved in 09 cases of like nature, therefore, he is not entitled to the concession of post arrest bail.
5. Heard, record examined.
6. It is well settled principle that while making decision on bail application, only a tentative assessm ent of the material collected during the course of investigation is permissible while deeper appreciation is not warranted under the law.
7. A bare perusal of the record reveals that the petitioner was arrested on 17.02.2025. The petitioner is involved in 09 other cases of similar nature, it seems that the petitioner is a habitual offender and he has remained absconder in the instant case.
8. The ingredients of section 406 PPC are very much applicable in this case as the petitioner being owner of the said company has committed the offence of criminal breach of trust and dishonestly misappropriated the amount. Sufficient incriminating material is available on the record against the petitioner, which connects him with the commission of the alleged offences.
9. Canvassing the judicial precedents of our superior Courts, it is noted that the views on abscondence of an accused, while seeking post arrest bail, has varied with time. In this regard, some of the celebrated judgments of the Apex Court on the issue in hand require consideration; In Ibrahim's case (1985 SCM R 382), the Supreme Court, while discussing the bail application of an abscondor in a criminal case held that; "It may straightaway be remarked that long abscondence would not become irrelevant merely because the co-accused of the accused concerned have, during his abscondence, been acquitted on consideration of the evidence led by the prosecution. The law earlier laid down in respect of persons who become fugitive form law does not leave anything in doubt in this behalf.
However, it is correct that in some rare cases notwithstanding abscondence the accused might be released on bail, for example, when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C. and/or the so-called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence .
This provision does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the officer incharge of Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that "there are no reasonable grounds for believing that the accused has committed nonbailable offence". Without such finding by such Officer or the Court the accused would not be released on ground of further inquiry under subsection (2). And similarly if such a finding is recorded the accused cannot be denied the right of bail granted to him by the same provision. In the present case neither the officer nor the Court concerned recorded the prerequisite finding. That being so the respondent could not be released on bail on ground of so-called further inquiry under subsection (2) of section 497 Cr.P.C."
(emphasis provided)
10. The above opinion of the worthy Apex Court was reaffirmed in Muhammad Sadiq's case (PLD 1985 S.C 182) in terms that; "But as regards the other question viz the effect of abscondence of the accused for a period of six months on their right to obtain bail we feel that this question has not been given due attention by the learned Judge in his order. The effect of abscondence, as explained by this Court in its two recent judgments, is that the person becoming a fugitive from law loses some of the normal rights granted to accused persons by the procedural as also substantive law and disentitles himself to the concession of bail notwithstanding the merits of his case, unless he can satisfactorily explain the period of his abscondence."
(emphasis provided)
11. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Imran v. The State (PLD 2021 SC 903), has formulated the grounds for the case to fall within the exception meriting denial of bail as:- (a). the likelihood of the petitioner's abscondence to escape trial;
(b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or
(c) his repeating the offence keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offence alleged.
12. Similarly, in the case of Shaukat Ali alias Shoka vs. The State (2004 SCMR 1068), the Hon'ble Supreme Court of Pakistan declined bail, because the petitioner had been involved in more than seven cases. In the case at hand, the petitioner is nominated in 09 other cases of similar nature.
13. In view of the above, without going into a more profound appreciation of the evidence at this stage, based on tentative assessm ent, this court has come to the conclusion that petitioner is not entitled to the concession of bail, therefore, the instant post-arrest bail is dismissed. The learned trial Court is directed to conclude the trial within a period of one months positively, under intimation to this Court.
14. The observations recorded hereinabove are tentative in nature and shall have no impact upon the merits of the case.