PLJ 2022 Cr.C. 697
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, 1860 (XLV of 1860), S. 365--Pre-arrest bail, grant of--There is a delay of 07 days in registration of FIR and no exegesis has been given by complainant--Petitioners along with their co-accused abducted his son forcibly at gunpoint and took him at shop of and tied with electric pole and also tortured him--Whether offence with which petitioners have been involved falls within remit of Section 365, PPC or 342, PPC--Criminal as well as civil litigation is pending between parties--While granting pre-arrest bail even merits of case can be touched upon--It is not possible in each and every case to prove mala fide but same can be gathered from facts and circumstances of case--Ad-interim pre-arrest bail already granted to petitioners vide order is confirmed.
[Pp. 698, 699, 700, 702] A, B, C & D
2021 SCMR 130, 2010 SCMR 64, 2021 SCMR 2082, PLD 2021 SC 898, PLD 2017 SC 730, PLD 2021 SC 708.
Rao Ajmal Hussain, Advocate for Petitioners.
Mr. Moeen Ali, DPG for State.
Mr. Ali Hussain Mohsin, Advocate for Complainant.
Date of hearing: 30.11.2021.
PLJ 2022 Cr.C. 697
[Lahore High Court, Lahore]
MUTEEN-UR-REHMAN etc.--Petitioners
versus
STATE etc.--Respondents
Crl. Misc. No. 67507-B of 2021, heard on 30.11.2021.
Order
Through this petition, Muteen-ur-Rehman, Muhammad Saleem, Imran alias Mani, Tayyab and Rana Nisar, petitioners seek pre-arrest bail in case FIR No. 710, dated 21-06-2021 for an offence under Section 365, PPCat Police Station Saddar Okara.
2. Tersely, the facts of the case are that on 14-06-2021 at about 12/1 p.m. Muhammad Yaseen, complainant along with his son while riding on a rickshaw was coming towards 39/3R and when they reached near the shop of Muteen-ur-Rehman, the petitioners while armed with deadly weapons stopped their rickshaw where Muteen-ur-Rehman, petitioner raised a lalkara to catch Shakeel and kill him and all the accused persons abducted his son forcibly at gunpoint and took him at the shop of Muteen-ur-Rehman and tied him with electric pole and tortured him. Hence, the FIR.
3. I have mused over the arguments advanced by the learned counsel for the petitioners as well as learned DPG assisted by learned counsel for the complainant and perused the record with their able assistance.
“…. According to the contents of the crime report, it is mentioned that the occurrence has taken place in the morning whereas the matter was reported to police at 10:50 a.m. Admittedly, the inter-se distance between the place of occurrence and police station is 08-KM. Inordinate delay qua time of occurrence and registration clearly reveals that possibility of deliberation and consultation cannot be ruled out …”
Reference can also be given to the case law titled as “Nadeem alias Nanha alias Billa Sher vs. The State” (2010 SCMR 949).
It is noteworthy that Irshad ASI/Investigating Officer has opined vide case diary No. 7 dated 12-07-2021 that Muhammad Shakeel son of Muhammad Yasin (complainant) was accused of criminal case FIR No. 657/2021, u/S. 337-F(v), 337-F(i), 337-L(2), 379, 148, 149 PPC, Police Station Saddar Okara, who came at Adda Chak No. 39-3-R on his motorcycle Rickshaw and petitioner Muteen-ur-Rehman along with his co-accused apprehended him, took him to his nearby shop situated at Adda Chak No. 39-3R and tied him. Muteen-ur-Rehman is a complainant of supra mentioned FIR against Muhammad Shakeel (abductee) and the complainant party subsequently informed the police and handed over Muhammad Shakeel to the police. Accused Muteen-ur-Rehman, Imran, Nisar Ahmad, Saleem-ur-Rehman, Tayyab Javaid were found present at the place of occurrence and guilty in the investigation. To better appreciate whether the offence with which the petitioners have been involved falls within the remit of Section 365, PPC or 342, PPC, it will be expedient to have careful study of Sections 365, 340 and 342, PPC, which are hereby reproduced infra:
365 PPC. “Kidnapping or abducting with intent secretly and wrongfully to confine person. Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine..”
340. Wrongful confinement:--Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said “Wrongfully to confine” that person.
342. Punishment for wrongful confinement. Whoever wrongfully confines any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to [three thousand rupees], or with both.
After comparative study of op-cit sections, it manifests that in case of kidnapping and abduction of any person with intention to be secretly and wrongfully confined then Section 365, PPC will be applied. Similarly, if a person is simply wrongfully confined, the provisions of Section 342, PPCwill be applicable. After going through the FIR and evidentiary material collected by the police, it divulges that Muhammad Shakeel was not confined secretly, in this way Section 342, PPC would attract and not Section 365 PPC. Anyhow final determination will be made by the learned trial Court after recording and evaluating the evidence.
“….The petitioners namely Shoaib Irshad and Zohaib Irshad are real brothers and Muhammad Irshad is their real father. Now adverting to the question as to whether a prima facie case is made out or otherwise, it is to be noted that no evidence qua sodomy has come except fracture of his finger which according to medical report was fabricated and the fracture was described as “self-suffered”. It must not be lost sight of that initially the case was got registered under Section 148, 149 and 342, PPC and subsequently the addition of Section 365, PPCwas made which depicts the mala fide and ulterior motives. It is worth mentioning that litigation is pending between the parties on the watercourse which indicates the factum of enmity. As mentioned hereinabove, nothing could be produced on record showing that the concession of pre-arrest bail has been misused and the petitioners remained absconders…”
Similar view has been reiterated by the apex Court of the Country in the case titled as “Shahid Abbas vs. The State and others” (2021
SCMR 2082).
Wisdom is also derived from the case law reported as “Muhammad Bilal vs. The State” (2008 MLD 231).
7. Although, it is a pre-arrest bail application and merits for grant of bail before arrest and after arrest are altogether different but the august Supreme Court of Pakistan in its landmark judgment reported as “Meeran Bux v. The State and another” (PLD 1989 SC 347) has held that while granting pre-arrest bail even the merits of the case can be touched upon. The relevant portion of the esteemed judgment of the Apex Court of the Country is reproduced as under:
“… 4. Apart from this we find that the Sessions Judge granted the pre-arrest bail to the appellant after considering the merits of the, case inasmuch as he inter alia observed that the injury alleged to have been caused by the appellant to the leg of the deceased by gun. shot was according to the post-mortem note, neither fatal nor was caused on the vital part of the body and was declared to be simple and that it was a case of further inquiry so far as the appellant is concerned. The High Court did not at all, consider the case on merits though this Court in the case of Jamaluddin v. State 1985, SCMR1949 has observed at page 1952 of the report as follows:
“it has been laid down by this Court that the grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard. In Murad Khan's case to which reference was made by the learned Judge, this Court reiterated the principle that arrest for ulterior motives such as humiliation and unjustified harassment was a valid consideration for grant of pre-arrest bail. Similar rule was laid down in Zia-ul-Hasan's case. In our opinion. therefore, the order of the learned Sessions Judge, did not in any respect, disregard the well-recognized principle for grant of pre-arrest bail to the petitioner. Without upsetting the finding, reached by the learned Sessions Judge that the petitioner had been involved for ulterior motives of harassing due to enmity existing between the parties, the learned Judge in the High Court was not justified to invoke his suo motu powers for the purpose of canceling the order of bail ..."
Similar view has been reiterated by the apex Court of the Country in the case titled as “Sajid Hussain alias Joji vs. The State” (PLD 2021 SC 898) wherein the august Supreme Court of Pakistan was pleased to observe as under:
7. This Court in the above-referred salutary judgment rendered by a five members bench has broadened the scope of pre-arrest bail and held that while granting extraordinary relief of pre-arrest bail, merits of the case can be touched upon. Hence, virtually the scope of pre-arrest bail has been extended by this Court while rendering the afore-referred judgment. Even otherwise, this aspect of the law further lends support from the bare reading of provisions of Section 497/498, Cr.P.C. The word 'further inquiry' has wide connotation. Interpretation of criminal law requires that the same should be interpreted in the way it defined the object and not to construe in a manner that could defeat the ends of justice. Otherwise, an accused is always considered a 'favorite child of law'. When all these aspects are considered conjointly on the touchstone of principles of criminal jurisprudence enunciated by superior Courts from time to time, there is no second thought to this proposition that the scope of pre-arrest bail indeed has been stretched out further which impliedly persuade the Courts to decide such like matters in more liberal manner. Because basic law is bail not jail. Otherwise, the liberty of a person is a precious right, which has been guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. Denial of liberty of a person is a serious step in law, therefore, the Courts should apply judicial mind with deep thought for reaching at a fair and proper conclusion. Such exercise should not be carried out in vacuum or in a flimsy or casual manner as that would defeat the ends of justice because if the accused is ultimately acquitted at the trial then no reparation or compensation can be awarded to him for the long incarceration he had already suffered. Even none of the provisions of Cr.P.C. provide any remedy to be claimed by the petitioner for its compensation.
“Although for grant of pre-arrest bail one of the pre-conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide.”
Likewise, in the case of “Shahzada Qaiser Arfat alias Qaiser v. The State and another” (PLD 2021 SC 708), the Apex Court of the country was pleased to observe as under:
“…. The non-availability of incriminating material against the accused or non-existence of a sufficient ground including a valid purpose for making arrest of the accused person in a case by the investigating officer would as a corollary be a ground for admitting the accused to pre-arrest bail, and vice versa. Reluctance of the Courts in admitting the accused persons to pre-arrest bail by treating such a relief as an extraordinary one without examining whether there is sufficient incriminating material available on record to connect the accused with the commission of the alleged offence and for what purpose his arrest and detention is required during investigation or trial of the case, and their insistence only on showing mala fide on part of the complainant or the Police for granting pre-arrest bail does not appear to be correct, especially after recognition of the right to fair trial as a fundamental right under Article 10-A of Constitution of Pakistan, 1973. Protection against arbitrary arrest and detention is part of the right to liberty and fair trial. This Court has, in many cases, granted pre-arrest bail to accused persons after finding that there are no reasonable grounds for believing their involvement in the commission of the alleged offence and has not required independent proof of mala fide on part of the Police or the complainant before granting such relief. Despite non-availability of the incriminating material against the accused, his implication by the complainant and the insistence of the
police to arrest him are the circumstances which by themselves indicate the mala fide on part of the complainant and the Police, and the accused need not lead any other evidence to prove mala fide on their part ….
9. The epitome of above discussion is that the petitioners Muteen-ur-Rehman, Muhammad Saleem and Imran alias Mani, Tayyab and Rana Nisar have succeeded in making the case for the confirmation of the pre-arrest bail, hence, this petition is allowed and the ad-interim pre-arrest bail already granted to the petitioners vide order dated 29-10-2021 is confirmed subject to their furnishing of fresh bail bonds in the sum of Rs. 100,000/-(Rupees one hundred thousand only) each with one surety, in the like amount each to the satisfaction of the learned trial Court.
10. Needless to mention 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.) Bail confirmed
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