PLJ 2024 Cr.C. (Note) 20
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
GHULAM MURTAZA alias SHERAZ--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 3685-B of 2023, decided on 6.6.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), S. 302/324/427/337-F(iii)/392/397/34--Pre-arrest bail--Confirm--Petitioner was not named as an accused in same--Injured witnesses of case got recorded their statements under Section 161, Cr.P.C on 15.11.2022 and even in those statements, they did not name petitioner as an accused--There is no statement under Section 161, Cr.P.C of any witness recorded during investigation of case, naming petitioner as an accused or saddling him with responsibility of firing at injured witness--Arrest of petitioner is not necessary for purpose of recovery--Petitioner was himself seriously injured and was also examined by Medical Officer--Petition is allowed and ad-interim pre-arrest bail already granted to petitioner by this Court is confirmed--Petition allowed. [Para 4] A, B, C & D
PLJ 2018 SC 445; PLD 2017 SC 730 ref.
Syed Imran Abbas Kazmi, Advocate for Petitioner.
Mr. Tanveer Haider Buzdar, Assistant District Public Prosecutor with Ghulam Sarwar, Assistant Sub-Inspector.
Rana Muhammad Khawar Khan, Advocate for Respondent No. 2/Complainant.
Date of hearing: 6.6.2023.
Order
Through this petition under Section 498, Cr.P.C. the petitioner, namely Ghulam Murtaza alias Sheraz, seeks pre-arrest bail in case FIR No. 475 of 2022, dated 14.11.2022, registered in respect of offences under Sections 302, 324, 427, 337-F(iii), 392, 397 and 34, P.P.C. at Police Station Kameer, District Sahiwal.
2. The allegations against the petitioner, namely Ghulam Murtaza alias Sheraz, culled from the evidentiary material produced before the Court, are that he along with his co-accused, attacked the complainant party and the petitioner namely Ghulam Murtaza alias Sheraz, fired at Wahab, the injured witness of the case.
3. I have heard the learned counsel for the petitioner, the learned counsel appearing on behalf of the Respondent No. 2/complainant, the learned Assistant District Public Prosecutor and perused the record with their able assistance.
4. This is a pre-arrest bail and only a tentative assessment of the evidentiary material produced before the Court is to be made at this stage. A perusal of the record reveals that though the F.I.R was registered on 14.11.2022, however, the petitioner namely Ghulam Murtaza alias Sheraz, was not named as an accused in the same. Subsequently, the injured witnesses of the case namely Wahab and Zeeshan Haider got recorded their statements under Section 161, Cr.P.C. on 15.11.2022 and even in those statements, they did not name the petitioner as an accused. It was only on 16.12.2022 that the name of the petitioner cropped up for the first time during the investigation of the case when the Investigating Officer of the case recorded the statement of Wahab, the injured witness of the case, who alleged that the petitioner had also fired at him. It is important to note that this statement of Wahab, the injured witness of the case whereby he named Ghulam Murtaza alias Sheraz as an accused, was not recorded under Section 161, Cr.P.C. rather, was made part of the case diary only. In this manner, there is no statement under Section 161, Cr.P.C. of any witness recorded during the investigation of the case, naming the petitioner as an accused or saddling him with the responsibility of firing at the injured witness namely Wahab. Furthermore, according to the statements of the injured witnesses of the case, which were recorded under Section 161, Cr.P.C., the injured witness of the case namely Wahab was fired at by Ijaz Akram and Mairaj Akram. The learned counsel appearing on behalf of the Respondent No. 2/complainant has fairly conceded that the prosecution case as against the petitioner is deficient. The Investigating Officer of the case submits that the petitioner was armed at the time of occurrence, therefore, the weapon is to be recovered from his possession. The learned counsel appearing on behalf of the Respondent No. 2/complainant has vehemently argued that as the recovery is to be made from the petitioner, therefore, he does not deserve to be extended extraordinary relief of pre-arrest bail. Suffice to observe that the arrest of the petitioner is not necessary for the purpose of recovery and the said purpose can be achieved by procuring a search warrant by the Investigating Officer. Reliance is placed on the case reported as “Aamir Bashir and another v. State and another” (P.L.J. 2018 SC 445). It is also a fact that during the same occurrence, the petitioner was himself seriously injured and was also examined by the Medical Officer therefore, a possibility does exist that the petitioner has been involved in this case due to the said fact. In view of the circumstances, the assertion of the learned counsel for the petitioner that involvement of the petitioner is based on mala fide and malicious intent is an assertion that cannot be said to be without basis and foundation at this stage. The Investigating Officer has already verified the versions of the complainant as well as the petitioner during the investigation of the case. In view of the peculiar facts of the case, sending the petitioner behind the bars at this stage would cause irreparable loss to his reputation and would serve no useful purpose. Reliance is 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 petitioner by this Court, vide order dated 26.05.2023, is confirmed subject to his furnishing fresh bail bonds in the sum of Rs. 2,00,000/- (Rupees two hundred thousand only) with two sureties, each in the like amount, to the satisfaction of the learned trial Court.
6. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit.
(K.Q.B.) Petition allowed
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