Pre-arrest bail only if mala fide of complainant established: SC

ISLAMABAD: The Supreme Court (SC) has held that relief of pre-arrest bail can only be granted to the accused if he establishes the mala fide on the part of complainant or the police.

A three-member member bench of the apex court headed by Justice Yahya Afridi and comprising Justice Syed Hassan Azhar Rizvi and Justice Irfan Saadat Khan dismissed a plea seeking pre-arrest bail in a fraud case.

Azhar Pervez Bukhari had filed an appeal against the order passed by Lahore High Court declining pre-arrest bail to him in case FIR No.432 dated 23.12.2023 registered under Section 489-F PPC at the Police Station City Lala Musa District Gujrat.

The allegation against the petitioner is that he issued a cheque bearing No. 00005352 amounting to Rs80,00,000/- to the complainant which on presentation before the bank concerned was dishonoured. An inquiry conducted to ascertain the truth also revealed that petitioner had issued the cheque.

Counsel for the petitioner had contended that he was falsely implicated in the case with mala fide intention and ulterior motives; that photo of a blank cheque was sent to the petitioner through WhatsApp number of the complainant for demanding the amount and on refusal it was later filled in; that the cheque in question was stolen from the possession of the petitioner and an FIR thereof was also registered in 2022; that the matter is one of further inquiry.

The learned law officer appearing on behalf of the state had vehemently opposed the contentions raised by the learned counsel for the petitioner. He contended that the petitioner attempted to deprive the complainant of a huge amount by issuing a cheque dishonestly which was dishonoured; that petitioner himself issued the cheque in lieu of liability in front of the witnesses; that FIR for theft of the cheque that was registered in 2022 was found to be false during investigation, therefore, criminal liability of the petitioner is apparent on the face of record.

“Perusal of the record indicates that petitioner is specifically nominated in the FIR and he has not denied his signatures on the cheque and inquiry was also conducted in this regard, however, the petitioner failed to establish any mala fide of the complainant to falsely implicate him in the matter”, says a four-page judgment authored by Justice Syed Hassan Azhar Rizvi.

The court held that bail before arrest is an extraordinary relief which cannot be granted unless person seeking it satisfies conditions specified under section 497(2) Cr.P.C. and establishes existence of reasonable grounds leading to believe that there are in fact sufficient grounds warranting further inquiry.

This court has discussed this aspect of case in a number of cases, reference may be made to the case of Muhammad Sadiq and others v. The State (2015 SCMR 1394), relevant portion wherefrom is reproduced as under:-

“Considerations for pre-arrest bail are totally different from that of post-arrest bail. Pre-arrest bail is an extraordinary relief, whereas the post arrest bail is an ordinary relief”, says the judgment

The court held that while seeking pre-arrest bail it is duty of accused to establish and prove mala fide on the part of the Investigating Agency or the complainant adding that bail before arrest is meant to protect innocent citizens who have been involved in heinous offences with mala fide and ulterior motive.

“It is a settled principle of law that relief of pre-arrest bail can only be granted to the accused if he establishes the mala fide on the part of complainant or the police”, says the judgment

Perusal of the material available on the record indicates that petitioner has failed to establish any mala fide or ulterior motives on the part of the complainant”, says the judgment adding that the plea taken by the learned counsel for the petitioner that cheque in question was stolen and an FIR thereof was registered by petitioner’s brother in law holds no merit because said FIR was found to be false after investigation.

“Thus, there is sufficient incriminating material available on record which prima facie connects the petitioner with the alleged offence, thereby, disentitling him from the extraordinary relief of pre-arrest bail”, the court declared.

The court noted that in view of the above facts and circumstances, the impugned judgment, having considered all aspects of the case, both legal and factual, is well-reasoned and does not warrant any interference by this Court.

The court further held that even otherwise, this petition is barred by 35 days adding that the application seeking condonation of delay does not disclose any cogent reason for the said delay.

Therefore, application for condonation of delay is hereby dismissed”, the court declared adding that the petition is dismissed on the ground of limitation as well as on merits, refusing the leave.

Before parting, the court reiterated that the observations made hereinabove are tentative in nature and the trial court is at liberty to independently adjudicate the case on its own merits, without being influenced by these observations.