PLJ 2024 Cr.C. (Note) 98
[Lahore High Court, Multan Bench]
Present: Muhammad Tariq Nadeem, J.
MUHAMMAD SAFDAR--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 7324-B of 2023, decided on 5.12.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 452, 336-F(v), 337-A(i), 337-L(2), 148 & 149--Pre-arrest bail, grant of--Petition alongwith co-accused equipped with weapons attack upon complainant party--There is delay of thirteen days in lodging FIR and no explanation for such inordinate delay has been brought on record, meaning thereby, crime report has been got registered after due deliberation and consultation--While taking notice of inordinate delay and other grounds confirmed pre-arrest bail of accused--The petitioner has failed to point out any mala fide or ulterior motive on part of complainant, which is sine qua non for confirmation of pre-arrest bail, is concerned, it is noteworthy that element of mala fide is floating on surface of record--More so, it has been held in pronouncements of Hon’ble Supreme Court of Pakistan that factum of mala fide can also be inferred and deduced from facts and circumstances of case--The petitioner has already joined investigation and since grant of ad interim pre-arrest bail, there is no allegation that he has misused this concession.
[Para 4, 6, 8 & 9] A, C & E
2021 SCMR 130, PLD 2017 SC 730 and PLD 2021 SC 708.
Benefit of Doubt--
----It is settled law that benefit of doubt can be extended to accused even while deciding pre-arrest bail application. [Para 5] B
2023 SCMR 364.
Pre-arrest bail--
----It is a pre-arrest bail application and merits for grant of bail before arrest and after arrest are all altogether different but in recent case laws of apex Court of country it has been held that while granting pre-arrest bail even merits of case can be touched upon. [Para 7] D
PLD 2021 SC 898, 2022 SCMR 1424 & 2022 SCMR 1946.
Mr. Muhammad Faisal Bashir Chudhary, Advocate for Petitioner.
Malik Mudassar Ali, DPG for State.
Date of hearing: 5.12.2023.
Order
Through this petition filed under Section 498, Cr.P.C. the petitioner has sought pre-arrest bail in case FIR No. 871 dated 13.08.2023, in respect of offences under Sections 452, 337F(v), 337A(i), 337L(2), 148, 149, PPC, registered at Police Station Karor, District Layyah.
2. Brief facts mentioned in crime report are that on 31.07.2023 at about 01:30 p.m. the petitioner along with co-accused while equipped with their respective weapons launched attack upon Muhammad Ramzan, father-in-law of Jamshaid complainant and caused injuries to him, hence, the above-mentioned FIR.
3. I have mused over the arguments advanced by the learned counsel for the petitioner as well as learned Law Officer and have gone through the record with their assistance.
4. According to the crime report, occurrence had allegedly taken place on 31.07.2023, whereas the FIR was lodged on 13.08.2023. There is delay of thirteen days in lodging the FIR and no explanation for such inordinate delay has been brought on the record, meaning thereby, the crime report has been got registered after due deliberation and consultation. The Hon’ble Supreme Court of Pakistan in the case reported as “Khair Muhammad and another v. The State through PG Punjab and another” (2021) SCMR 130) while taking notice of inordinate delay and other grounds confirmed pre-arrest bail of the accused.
5. It is further discernible from the record that the petitioner has been assigned the role of giving club blow to Muhammad Ramzan, father-in-law of Jamshaid complainant, which landed on little finger of his left hand and at the time of his medical examination, the doctor has described this injury as Injury No. 4 which is reproduced as under:
Injury No. 4-lacerated wound about 2x0.5 cm on left hand little finger on palmer aspect, x-ray advised.
Although this injury has been declared as “ghayr-jaifah hashimah” falling under Section 337F(v), PPC, however, learned Law Officer has not been able to satisfactorily explain that if the petitioner had inflicted club blow on left hand’s little finger of op.-cit. injured, then how there is no mark of violence on any other part of his left hand, except fracture of left little finger. Furthermore the doctor who had medically examined the above said injured has not given any opinion regarding possibility of fabrication of injuries and he has left the relevant column unfilled. Offence under Section 452, PPC has already been deleted by the investigating officer during the course of investigation vide case diary No. 4 dated 07.09.2023. In view of the above circumstances, the prosecution story qua fracture of left hand’s little finger of supra-mentioned injured person seems to be doubtful in nature. It is settled law that the benefit of doubt can be extended to the accused even while deciding pre-arrest bail application. Reliance is place on the case-law reported as “Fahad Hussain and another v. The State through Prosecutor General Sindh” (2023 SCMR 364).
6. So far as the contention of learned Law Officer that the petitioner has failed to point out any mala fide or ulterior motive on the part of complainant, which is sine qua non for confirmation of pre-arrest bail, is concerned, it is noteworthy that the element of mala fide is floating on the surface of record. More so, it has been held in pronouncements of Hon’ble Supreme Court of Pakistan that factum of mala fide can also be inferred and deduced from the facts and circumstances of the case. I fortify my view from the dictum laid down in cases titled as “Khalil Ahmed Soomro v. The State” (PLD 2017 SC 730) and “Shahzada Qaiser Arfat alias Qaiser v. The State and another” (PLD 2021 SC 708).
7. Although it is a pre-arrest bail application and merits for grant of bail before arrest and after arrest are all altogether different but in the recent case laws of apex Court of the country titled as “Sajid Husain alias Joji v. The State” (PLD 2021 SC 898), “Javed Iqbal v. The State through Prosecutor General Punjab and another” (2022 SCMR 1424) and “Rana Muhammad Imran Nasrullah v The State and others” (2022 SCMR 1946), it has been held that while granting pre-arrest bail even the merits of the case can be touched upon.
8. The petitioner has already joined the investigation and since the grant of ad interim pre-arrest bail, there is no allegation that he has misused this concession.
9. The epitome of above discussion is that the petitioner has succeeded in making out the case for confirmation of pre-arrest bail, hence, this petition is allowed and the ad interim pre-arrest bail already granted to the petitioner vide order dated 09.10.2023 is confirmed subject to his furnishing fresh bail bonds in the sum of
Rs. 100,000/- (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.
10. Needless to mention here that any observations made in the above order are tentative in nature and shall not influence the trial Court in any manner.
(A.A.K.) Petition allowed
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