-Eye-witnesses mentioned in FIR, including injured witnesses, have so far stood by their statements made before police fully implicating respondent---Cancellation of pre-arrest bail-

 PLJ 2022 Cr.C. 349

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497(5)--Pakistan Penal Code, (XLV of 1860), Ss. 337-A(v), 337-A(i), 337-F(i), 337-L(2) & 34--Cancellation of pre-arrest bail--Application of--Prosecution had sufficient evidentiary material to connect Respondent No. 4 with commission of an offence made punishable u/S. 337-A(v), PPC, which offence falls within prohibitory clause of Section 497(1) of Code of Criminal Procedure, 1898--Medical Officer observed presence of Hematoma on parietal region of injured--Eye-witnesses mentioned in FIR, including injured witnesses, have so far stood by their statements made before police fully implicating respondent--Mere registration of a cross-version case does not entitle any accused to be granted extraordinary relief of pre-arrest bail--Petition is allowed.              

                                                      [Pp. 351, 352 & 354] A, B, C, D & E

Mirza Muhammad Azam, Advocate for Petitioner.

Rao Nasir Mahmood Khan, Advocate with Respondent No. 4 namely Muhammad Umar.

Mr. Javed Iqbal Bhayya, Assistant District Public Prosecutor.

Date of hearing: 6.10.2021.

 PLJ 2022 Cr.C. 349
[Lahore High Court, Bahawalpur Bench]
Present: Sadiq Mahmud Khurram, J.
KAFAYAT ULLAH--Petitioner
versus
STATE and 6 others--Respondents
Crl. Misc. 2143-CB of 2021, decided on 6.10.2021.

Order

Through this petition, the petitioner is seeking cancellation of pre-arrest bail granted to Respondent No. 4, namely Muhammad Umar by the learned Additional Sessions Judge Bahawalnagar vide order dated 14.06.2021, in case FIR No. 225 of 2021 dated 24.05.2021 registered at Police station Donga Bonga District Bahawalnagar in respect of offences under Sections 337-A(v), 337-A(i), 337-F(i), 337-L(2) and 34, PPC. On 30.06.2021, this petition to the extent of Respondents No. 2, 3, 5, 6 and 7 namely Muhammad Ahmed, Muhammad Mazhar, Muhammad Shehzad, Rashid and Muhammad Akhtar, was dismissed as withdrawn.

2. The allegation against the Respondent No. 4, namely Muhammad Umar, culled from the evidentiary material produced before the Court, is that he along with his co-accused attacked the complainant party, whereas the Respondent No. 4 namely Muhammad Umar, while armed with a Kassia , gave a blow of the same, hitting on the head of Inam Ullah, the injured witness of the case.

3. Learned counsel for the petitioner submitted that the Respondent No. 4 namely Muhammad Umar was granted pre arrest bail by the learned Additional Sessions Judge vide his order dated 14.06.2021 despite the fact that he was attributed to have caused an injury on the head of Inam Ullah, the injured witness of the case, and the said injury was declared to be of the kind of Shajjah-i-Ammah made punishable under Section 337 A(v), PPC, however, while granting the pre arrest bail to Muhammad Umar (Respondent No. 4), the learned Additional Sessions Judge did not even advert to this fact.

4. The learned Assistant District Public Prosecutor also supported the instant petition and argued that the prosecution had sufficient evidentiary material to connect the Respondent No. 4 namely Muhammad Umar with the commission of an offence made punishable under Section 337-A(v), PPC, which offence falls within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure, 1898. He further argued that the Respondent No. 4, namely Muhammad Umar is required by the police for further investigation. He next contended that the Respondent No. 4, namely Muhammad Umar was not entitled to the extraordinary relief of pre-arrest bail and the bail granting order was erroneous and the result of improper exercise of discretionary powers by the learned Additional Sessions Judge, Bahawalnagar.

5. On the contrary, the learned counsel for the Respondent No. 4, namely Muhammad Umar argued that the impugned order does not warrant interference by this Court. The learned counsel for the Respondent No. 4, further urged that principles for cancellation of bail and grant thereof were different from each other and according to him, the only ground to be considered for cancellation of bail was the misuse of concession of bail or tampering with the evidence, which are not even alleged in the case in hand and, therefore, the impugned order being based on correct legal footings needs no interference. The learned counsel for the Respondent No. 4, namely Muhammad Umar further submitted that the powers under Section 498, Cr.P.C., are discretionary and Court can exercise these powers in appropriate cases and the case in hand is also a case where the discretion had been properly exercised.

6. I have heard the learned counsel for the petitioner, the learned counsel for the Respondent No. 4, the learned Assistant District Public Prosecutor and have perused the record with their able assistance.

7. A perusal of the record reveals that the allegation against the Respondent No. 4, namely Muhammad Umar is that he along with his co-accused attacked the complainant party, whereas the Respondent No. 4, namely Muhammad Umar, while armed with a Kassia, gave a blow of the same, hitting on the head of Inam Ullah, the injured witness of the case. Inam Ullah, the injured witness of the case was examined by the Medical Officer on 18.05.2021 and Medico Legal Examination Certificate was issued with regard to the injuries observed by the Medical Officer. According to the Medico Legal Examination Certificate, Inam Ullah, the injured witness of the case, was brought to the hospital in a semi-conscious condition, who was vomiting at the time and his pupils were also dilated. On examination, the Medical Officer observed the presence of Hematoma on the parietal region of the injured. According to the final opinion of the Medical Officer the injury observed on the head of Inam Ullah, the injured witness of the case, was declared to be kind of Shajjah-i-Ammah, made punishable under Section 337-A(v), PPC. The Respondent No. 4, namely Muhammad Umar has been saddled with the responsibility of causing the said injury. It is not disputed that the eye-witnesses mentioned in the FIR, including the injured witnesses, have so far stood by their statements made before the police fully implicating the Respondent No. 4 namely Muhammad Umar in the alleged offences and also that prima facie the medical evidence lends support to the allegations leveled by the prosecution witnesses against the said Respondent No. 4 namely Muhammad Umar. Even during the investigation of the case, the Respondent No. 4 namely Muhammad Umar was found to be fully involved in the occurrence and the allegation levelled against him was verified. The Court has perused the order passed by the learned Additional Sessions Judge, Bahawalnagar dated 14.06.2021 vide which the Respondent No. 4 namely Muhammad Umar was granted pre-arrest bail and finds that these aspects of the case have not even been discussed in the impugned order. While passing the impugned order dated 14.06.2021, the learned Additional Sessions Judge, Bahawalnagar did not even mention the specific role of the Respondent No. 4, namely Muhammad Umar in the occurrence as narrated by the prosecution witnesses. It has also not been adverted to by the learned Additional Sessions Judge, Bahawalnagar that the recovery of the Kassia was still to be made and for that purpose, custody of the Respondent No. 4 namely Muhammad Umar was required by the Investigating Officer of the case. No doubt the learned Additional Sessions Judge, Bahawalnagar observed that the incident was reported to the police by way of the instant F.I.R and by way of the cross-version case lodged on the report of Muhammad Mazhar and registered through Rapt No. 26 at the same Police Station, still the mere registration of a cross-version case does not entitle any accused to be granted the extraordinary relief of pre-arrest bail. Reliance is placed on the case of “Shehryar Khan vs. The State and another” (2020 SCMR 1436), wherein it has been held as under:

“It would be less than expedient to comment upon the merits of the prosecution case, bracing a cross version set up on an injury, sustained by the co-accused, pressed into service with vehemence to construct hypothesis of self defence, a controversy to be best settled by the trial Court. Argument regarding suppression of injury sustained by Majid, co-accused, in the face of identical suppression in the cross version regarding the fatal shot on to the deceased, does not bring petitioner's case at a higher pedestal so as to be received with favour. Saddled with the responsibility of the fatal shot, petitioner's absence from law, additionally, stands in impediment to his release on bail. Given the role attributed to the petitioner, existence of a cross version, veracity whereof is yet to be settled, by itself would not bring his case within the purview of further probe. Petition fails. Leave declined.”

Reliance in this regard is also placed on the cases of “Mussadiq Khan vs. The State and another” (2005 SCMR 1718), Arif Din versus Amil Khan and another (2005 SCMR 1402), Syed Maqbool Muhammad vs. The State (2005 SCMR 635) and Nasir Muhammad Wassan and another vs. The State (1992 SCMR 501). The concession of pre-arrest bail cannot be allowed to an accused person unless the Court feels satisfied about 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 to be found in the impugned order passed by the learned Additional Sessions Judge, Bahawalnagar. Reliance in this regard is placed on the case of Rana Abdul Khaliq vs. The State and others (2019 SCMR 1129) wherein the august Supreme Court of Pakistan has held as under:

          “Grant of pre-arrest bail is an extra ordinary remedy in criminal jurisdiction; it is diversion of usual course of law, arrest in cognizable cases; a protection to the innocent being hounded on trump up charges through abuse of process of law, therefore a petitioner 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 investigation. Ever since the advent of Hidayat Ullah Khan's case (PLD 1949 Lahore 21), the principles of judicial protection are being faithfully adhered to till date, therefore, grant of pre-arrest bail essentially requires considerations of mala fide, ulterior motive or abuse of process of law, situations wherein Court must not hesitate to rescue innocent citizens; these considerations are conspicuously missing in the present case.”

Reliance is also placed on the cases of Abid Hussain vs. Tasawar Hussain and another (2021 SCMR 518) and Mukhtar Ahmad vs. The State and others (2016 SCMR 2064).

8. In view of the above discussion, the instant petition is allowed and consequently, the impugned order passed by the learned Additional Sessions Judge, Bahawalnagar dated 14.06.2021 to the extent whereby the Respondent No. 4, namely Muhammad Umar was allowed pre-arrest bail, is set-aside and the pre-arrest bail allowed to Respondent No. 4, namely Muhammad Umar by the learned Additional Sessions Judge, Bahawalnagar is cancelled.

(A.A.K.)          Petition allowed