PLJ 2023 Cr.C. (Note) 67
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), S. 452/34--Pre-arrest bail--Confirm of--There is haunting silence regarding explanation qua the delay in registration of FIR, which is almost two months--Co-accused granted bail after arrest--law officer failed to distinguish the case of co-accused--Prior to the instant FIR, the petitioner’s side has got registered a criminal case against the complainant party--Petitioners have succeeded in making the case for the confirmation of pre-arrest bail, hence this petition is allowed. [Para 4, 5, 6, 10] A, B, C & F
2022 SCMR 821; 1986 SCMR 1380; PLD 1989 SC 347 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pre-arrest bail--Merits of the case--while granting pre-arrest bail, even the merits of the case can be touched upon. [Para 7] D
PLD 2021 SC 898; 2021 SCMR 130 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pre-arrest bail--Malafide and ulterior motives--It is not possible in each and every case to prove the malafide but same can be gathered from the facts and circumstances of the case.
[Para 8] E
PLD 2017 SC 730 ref.
Khawaja Qaiser Butt, Advocate with Petitioners.
Mr. Muhammad Laeeq-ur-Rehman, ADPP for State
Nemo for Complainant.
Date of hearing: 13.7.2022.
PLJ 2023 Cr.C. (Note) 67
[Lahore High Court, Multan Bench]
Present: Muhammad Tariq Nadeem, J.
MUHAMMAD USMAN HAIDER etc.--Petitioners
versus
STATE etc.--Respondents
Crl. Misc. No. 3790-B of 2022, decided on 13.7.2022.
Order
Through this petition u/S. 498, Cr.P.C., Muhammad Usman Haider and Ubaid-ur-Rehman, petitioners seek pre-capture bail in case FIR No. 243, dated 13-05-2022 for offences under Sections 452 & 34, PPC registered at Police Station Tulamba, District Khanewal.
2. As per FIR, the allegation leveled against the petitioners is that they along with their co-accused Muhammad Abbas while armed with their respective weapons intruded the house of the complainant, outraged the modesty of Mst. Amina Bibi and thrown her into the water pond. Hence, the above-mentioned FIR.
3. Neither the complainant nor the learned counsel has turned up, despite the fact name of learned counsel for the complainant is duly reflected in the daily cause list. As it is a pre-arrest bail, therefore, I proceed to decide this bail application after hearing the arguments of learned counsel for the petitioners as well as learned Assistant District Public Prosecutor for the State and perusing the record minutely.
4. After going through the narration of FIR and the evidentiary material collected by the police and presented before this Court, it divulges that there is haunting silence regarding explanation qua the delay in registration of FIR, which is almost 02 months, which indicates that FIR has been lodged with due deliberation and consultation. Reliance is placed upon the case law titled as “Khair Muhammad and another vs. The State through PG Punjab and another (2021 SCMR 130) wherein it has been held as under:
“....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..”
5. Learned counsel for the petitioners has drawn the attention of this Court towards bail granting order passed by the learned Area Magistrate vide order dated 30-05-2022 whereby/co-accused Muhammad Abbas has been granted bail after arrest./On confrontation learned Law Officer has failed to distinguish the case of Muhammad Abbas, co-accused with the present petitioners, for the reason, the petitioners are entitled for the confirmation of bail before arrest. Reliance in this regard is placed upon the case titled as “Muhammad Ramzan vs. Zafar Ullah and another” (1986 SCMR 1380) wherein the Hon’ble Supreme Court of Pakistan held as under:-
“3. After hearing the learned counsel we feel that prima facie, at this stage, the case of the petitioner is not distinguishable from that of others to whom bail has been allowed. No useful purpose would be served if the bail of Zafar Ullah Khan respondent is cancelled on any technical ground because after arrest he would again be allowed bail on the ground that similarly paced other accused are already on bail. We, therefore, in the circumstances of this case, do not consider it a fit case for grant of leave to appeal. This petition accordingly, dismissed,...”
Similar view has been reiterated by the apex Court of the Country in the case titled as “Muhammad Kashif Iqbal vs. The State and another” (2022 SCMR 821).
6. Another intriguing aspect of this case, which cannot be lost sight of is that prior to the instant FIR, the petitioners side has got registered a criminal case FIR No. 140 dated 17-03--2022, under Sections 337-F (v), 337-F (i), 148, 149, PPC at Police Station Tulamba, District Khanewal against the complainant party of this case. In the eventuality of above mentioned circs, I am of the view that possibility cannot be ruled out that the petitioners have falsely been involved in this case as a counter blast.
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 a recent pronouncement of Apex Court of the Country in case titled as “Khair Muhammad and another vs. The State through P.G. Punjab and another” (2021 SCMR 130) it has been 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:
“...the concept of pre-arrest bail is exceptional, it has to be exercised sparingly. The purpose behind is to save innocent persons from false allegations, trumped up charges and malicious prosecution at the end of complainant party. In the salutary judgment of this Court reported as “Meeran Bux v. The State and another” (PLD 1989 SC 347), the scope of the pre-arrest bail has been widened and as such while granting pre-arrest bail even the merits of the case can be touched upon....”
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).
8. Learned Deputy Prosecutor General has argued with vehemence that the petitioners have 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. It has been well settled by now that it is not possible in each and every case to prove the mala fide but same can be gathered from the facts and circumstances of the case. I fortify my view from the dictum laid down in case titled as “Khalil Ahmed Soomro vs. The State” (PLD 2017 S.C 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.”
10. The epitome of above discussion is that the petitioners Muhammad Usman Haider and Ubaid-ur-Rehmar 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 07-06-2022 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 to the satisfaction of the learned trial Court.
11. 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.
(M.B.A.) Bail allowed
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