PLJ 2022 Cr.C. (Note) 96
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 382, 342, 148, 337-H(2) & 149--Anti-Terrorism Act, (XXVII of 1997), S. 7--Pre-arrest bail, grant of--Mala fide and malicious intent--Evidentiary material against petitioner--Petitioners called from evidentiary material produced before Court and they 18 in number attacked on police party and abducted constable, beating him and committed theft--It is not necessary that petitioners be sent behind bars as same purpose can be achieved by Investigating Officer by obtaining a search warrant--It will not be out of context to refer observation of august Supreme Court of Pakistan--Assertion of counsel for petitioners that involvement of petitioners in case seems to be based on mala fide and malicious intent, is an assertion which cannot be said to be without substance or foundation at this stage--This investigation of case to extent of petitioners is complete--Investigating Officer has already verified versions of petitioners and complainant during investigation of case--Sending petitioners behind bars at this stage would serve no useful purpose and will cause irreparable loss to their reputation--Bail allowed.
[Para 4] A & B
PLJ 2018 SC 445 and PLD 2017 SC 730.
Mr. Muhammad Bilal Butt, Advocate for Petitioners.
Mr. Muhammad Ali Shahab. Deputy Prosecutor General with Salamat Inspector for Respondents.
Date of hearing: 20.11.2019.
PLJ 2022 Cr.C. (Note) 96
[Lahore High Court, Multan Bench]
Present: Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ.
RAB NAWAZ alias MUHAMMAD RAB NAWAZ
and 4 others--Petitioners
versus
STATE and another--Respondents
Crl. Misc. No. 4647-B of 2019, decided on 20.11.2019.
Order
Through this petition under Section 498, Cr.P.C. the petitioners namely, Rab Nawaz alias Muhammad Rab Nawaz, Shahid alias Shahid Hussain, Qasim alias Qasim Hussain and Muhammad Hashim alias Hashim Hussain, seek pre-arrest bail in case FIR No. 210 of 2019, dated 26.03.2019, registered at Police Station City Shujahabad, District Multan, in respect of offences under Sections 353, 186, 382, 342, 148, 337-H(2) and 149, PPC and under Section 7 of the Anti-Terrorism Act, 1997.
2. The allegations against the petitioners namely, Rab Nawaz alias Muhammad Rab Nawaz, Shahid alias Shahid Hussain, Qasim alias Qasim Hussain and Muhammad Hashim alias Hashim Hussain, culled from the evidentiary material produced before the Court, are that they, along with their co-accused 18 in number, attacked the police party, got released Muhammad Tufail and Muhammad Musanif, abducted constable Aas Muhammad, gave beating to him and committed theft of articles belonging to Aas Muhammad 2513/C.
3. We have heard the learned counsel for the petitioner as well as learned Deputy Prosecutor General and perused the record with their able assistance.
4. This is a pre-arrest bail petition and only tentative assessment of the evidentiary material produced before the Court can be made at this stage. It is recorded in the FIR that on the day of occurrence a police party had been constituted to arrest the accused namely Muhammad Tufail and Muhammad Musanif in case FIR No. 51 of 2019 dated 21.01.2019 registered at the same police station in respect of offence under Section 392, PPC. We had summoned the record of investigation conducted in case FIR No. 51 of 2019 dated 21.01.2019 registered at the same police station. We have perused the said record and find that no case diary was recorded by the Investigating Officer of case FIR No. 51 of 2019 on 26.03.2019, so as to substantiate the fact that during the investigation of the case FIR No. 51 of 2019 the police party proceeded to the place of occurrence, got arrested the accused namely Muhammad Tufail and Muhammad Musanif and was subsequently attacked by the petitioners and their co-accused. This omission in the record of the investigation of the case FIR No. 51 of 2019 is conspicuous by its absence. The whole inception of the occurrence narrated in the instant FIR No. 210 of 2019 is put in doubt by the said omission. During the investigation of the case FIR No. 51 of 2019, case Diary No. 14 was recorded on 25.03.2019 and the next Diary No. 15 was recorded on 03.04.2019. Had the events as mentioned in the instant FIR taken place in the manner as suggested, then a case diary should have been recorded during the investigation of case FIRNo. 51 of 2019 on 26.03.2019. Furthermore in the instant FIR, the allegations against the petitioners are couched in collective and generalized terms. No specific allegation has been leveled against any of the petitioners or the other accused mentioned in the FIR and it is difficult to discern the individual liability of the petitioners at this stage. It would be the learned trial Court which would be in a position to determine the individual liability of the petitioners after a recording of evidence. At this stage no such opinion can be formulated. Additionally, the co-accused of the petitioners namely Dilawar Hussain, Safia Bibi and Abdul Razaq have already been found to have been involved in the occurrence falsely and have been declared innocent. The evidentiary material against the petitioners and their co-accused namely Dilawar Hussain, Safia Bibi and Abdul Razaq is similar. Divisibility of the worth of the statements of the witnesses at this stage is not possible. Moreover, during the investigation of the case Aas Muhammad 2513/C was not medically examined by any medical officer to substantiate the allegation of beating him leveled against the petitioners. In absence of any medico legal examination certificate issued with respect to injuries allegedly suffered by as Muhammad 2513/C, such allegation cannot be believed. Learned Deputy Prosecutor General has vehemently argued that recoveries are to be affected from the petitioners, hence, they do not deserve the grant of extra-ordinary relief of pre arrest bail. Suffice is to observe that for the purpose of recovery, it is not necessary that the petitioners be sent behind the bars as the same purpose can be achieved by the Investigating Officer by obtaining a search warrant. It will not be out of context to refer the observation of august Supreme Court of Pakistan, expressed in case reported as “Aamir Bashir and another v. State and another” (PLJ 2018 SC 445), in somewhat similar circumstances, which is as under:
“The plea of the Advocate General that the investigating agency has been deprived to interrogate both the petitioners far the recovery of the crime pistol and to collect further evidence after getting their custody, is not acceptable in the circumstances of the case. Moreover, this Court time and again has held that this could not be a ground for refusal of pre-arrest bail because the police has to use proper skills of investigation while interrogating the accused person, staying on pre-arrest bail. The interrogation inside the lockup of the police station or inside the police station would make a, very little difference."
In view of the above mentioned facts, the assertion of learned counsel for the petitioners that the involvement of the petitioners in the case seems to be based on mala fide and malicious intent, is an assertion which cannot be said to be without substance or foundation at this stage. This investigation of the case to the extent of petitioners is complete. The Investigating Officer has already verified the versions of the petitioners and the complainant during investigation of the case. Sending the petitioners behind the bars at this stage would serve no useful purpose and will cause irreparable loss to their reputation. Reliance is also placed on the case of “Khalil Ahmad Soomro and others v. The State” (PLD 2017 SC 730) wherein the following principle has been enunciated:
“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.”
5. In view of the above discussion, this petition is allowed and ad-interim pre-arrest bail already granted to the petitioners vide order dated 25.07.2019 is confirmed subject to their furnishing of fresh bail bonds in the sum of Rs. 50,000/- (Rupees Fifty Thousand only) each with two sureties each in the like amount to the satisfaction of learned trial Court.
6. 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 allowed
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