PLJ 2024 Cr.C. (Note) 41[Lahore High Court, Multan Bench]Present: Sadiq Mahmud Khurram, J.NAUMAN HUSSAIN and another--PetitionersversusSTATE and another--RespondentsCrl. Misc. No. 6009-B of 2022, decided on 20.9.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 337-A(ii), 354, 337-L(2) & 34--Pre-arrest bail, grant of--Allegation of--House trespass--This is a pre-arrest bail and only a tentative assessment of evidentiary material produced before Court is to be made at this stage--It has also been noticed that at time of examination, Woman Medical Officer had recorded history of incident as given by complainant of case which was reproduced in Medico Legal Examination Certificate and a perusal of said history reveals that while narrating history of incident, did not name petitioners as persons who had caused injuries to her--There is no allegation against Woman Medical Officer that she recorded history of incident on her own or incorrectly or in connivance with petitioners--There did not exist any reason for complainant of case not to have named petitioners as accused while narrating history of incident to Woman Medical Officer and a possibility does arises that petitioners were involved in case subsequently, after consultation and planning--The Deputy Prosecutor General has vehemently argued that recoveries of weapons used by petitioners are to be made from petitioners, therefore, they do not deserve to be extended extraordinary relief of pre-arrest bail--Suffice it to observe that arrest of petitioners is not necessary for purpose of recovery and said purpose can be achieved by procuring a search warrant by Investigating Officer--It has also been brought on record that mother of petitioner and mother in-law of petitioner had got lodged an FIR at same police station in respect of offences u/S. 354 and 34, P.P.C. against complainant and witnesses of instant case with regard to occurrence which had allegedly taken place therefore, a possibility does exist that due to said above dispute between parties, petitioners were involved in this case subsequently--Assertion of counsel for petitioners that involvement of petitioners is based on mala fide and malicious intent is an assertion which cannot be said to be without basis and foundation at this stage--The Investigating Officer has already verified versions of complainant as well as petitioners during investigation of case--In view of peculiar facts of case, sending petitioners behind bars at this stage, would cause irreparable loss to their reputation and would serve no useful purpose. [Para 4] A, C & D
Delay in register of FIR--
----In this manner, case was registered with a delay of as many as forty seven days, for which no explanation, much less plausible, is on record, to substantiate said deferral in registration of F.I.R--In absence of any explanation for delay, a possibility does arise that said delay in reporting matter to police was used to concoct and style a false narrative of F.I.R--Wherein, petitioners had been involved--The delay being unexplained attains importance and impact of same upon prosecution case shall be better determined by learned trial Court, however, presently, at this stage, it does reveal effort by complainant of case to stitch out a story before reporting matter to police--The delay is conspicuous by its magnitude and is also inordinate--Prima facie, at this stage, it can be gathered that said delay was used for evolving and devising a narrative against petitioners prior to proceeding with matter. [Para 4] B
2020 SCMR 861 & 2021 SCMR 130.
Malik Aftab Abbas Khan, Advocate with Petitioners.
Rana Muhammad Ashraf Jameel, Advocate for Complainant/ Respondent No. 2.
Mr. AnsarYaseen, Deputy Prosecutor General for State.
Date of hearing: 20.9.2022.
Order
Through this petition under Section 498, Cr.P.C. the petitioners, namely Nauman Hussain and Allah Ditta seek pre-arrest bail in case F.I.R. No. 335 of 2022, dated 13.08.2022, registered in respect of offences under Sections 337-A(ii),354,337-L(2) and 34, P.P.C. at the Police Station KachaKhuh District Khanewal.
2. The allegations against the petitioners namely Nauman Hussain and Allah Ditta, as culled from the evidentiary material produced before the Court, are that they along with their co-accused, four in total (two of the accused were named in the F.I.R wherein, it was got recorded that they were accompanied by two unknown accused persons), trespassed into the house of the complainant and the petitioner namely Nauman Hussain, while armed with a hatchet, gave a blow of the same, hitting on the head of Mst. Perveen Bibi, the complainant of the case and gave another blow with the hatchet, hitting on the left cheek and ear of Osama, the son of the complainant, whereas the petitioner namely Allah Ditta, while armed with a Sota, gave various blows of the same, hitting on the left leg, left arm, back, neck and right arm of Mst. Perveen Bibi, the injured witness of the case.
3. I have heard the learned counsel for the petitioners, the learned counsel for the complainant of the case as well as the learned Deputy Prosecutor General 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. At the very outset, the Investigating Officer of the case submits that though there was allegation against the petitioner Nauman Hussain that he had given blows with a hatchet to Osama, the son of the complainant, however, neither any injury statement of Osama was prepared nor Osama appeared before any Medical Officer to get himself examined. Furthermore, according to the FIR the occurrence had taken place on 26.06.2022 and Mst. Perveen Bibi, the complainant of the case was also examined by the Medical Officer on 26.06.2022, however, the matter was reported to the police only on 13.08.2022. Though in the FIR it had been got recorded that after the occurrence the Punjab Emergency Service (Rescue 1122 Punjab) also arrived at the place of occurrence, however, Investigating Officer of the case submits that during the investigation of the case he has not collected any evidence that after the occurrence, the Punjab Emergency Service (Rescue 1122 Punjab) had also arrived at the place of occurrence. In this manner, the case was registered with a delay of as many as forty seven days, for which no explanation, much less plausible, is on record, to substantiate the said deferral in registration of the F.I.R. In the absence of any explanation for the delay, a possibility does arise that the said delay in reporting the matter to the police was used to concoct and style a false narrative of the F.I.R. wherein, the petitioners had been involved. The delay being unexplained attains importance and the impact of the same upon the prosecution case shall be better determined by the learned trial Court, however, presently, at this stage, it does reveal the effort by the complainant of the case to stitch out a story before reporting the matter to the police. The delay is conspicuous by its magnitude and is also inordinate. Prima facie, at this stage, it can be gathered that the said delay was used for evolving and devising a narrative against the petitioners prior to proceeding with the matter. Reliance is placed on the case of “Abdul GhafoorGondal vs. The State” (2020 SCMR 861) and the case of “Khair Muhammad and another versus The State through P.G. Punjab and another” (2021 SCMR 130), wherein the august Supreme Court of Pakistan has held as under:
“There is no denial to this fact that the petitioners are nominated in the crime report. According to the contents of the crime report, it is mentioned that the occurrence has taken place in the morning (صبح ویلہ) 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.
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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 cannot be touched upon.”
It has also been noticed that at the time of examination, Woman Medical Officer had recorded the history of incident as given by Mst. Perveen Bibi, the complainant of the case which was reproduced in the Medico Legal Examination Certificate and a perusal of the said history reveals that while narrating the history of the incident, Mst. Perveen Bibi did not name the petitioners as the persons who had caused injuries to her. There is no allegation against the Woman Medical Officer that she recorded the history of the incident on her own or incorrectly or in connivance with the petitioners. There did not exist any reason for the complainant of the case not to have named the petitioners as accused while narrating the history of the incident to the Woman Medical Officer and a possibility does arises that the petitioners were involved in the case subsequently, after consultation and planning. The learned Deputy Prosecutor General has vehemently argued that the recoveries of the weapons used by the petitioners are to be made from the petitioners, therefore, they do not deserve to be extended extraordinary relief of pre-arrest bail. Suffice it to observe that the arrest of the petitioners 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), wherein it is held as under:
“The plea of the Advocate General that the investigating agency has been deprived to interrogate both the petitioners for 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.”
It has also been brought on record that Mst. Rani, mother of the petitioner namely Allah Ditta and mother in-law of the petitioner namely Nauman Hussain, had got lodged an FIR No. 369 of 2022 at the same police station in respect of offences under Sections 354 and 34 P.P.C. against the complainant and the witnesses of the instant case with regard to the occurrence which had allegedly taken place on 24.06.2022, therefore, a possibility does exist that due to the said above dispute between the parties, the petitioners were involved in this case subsequently. In view of the circumstances, the assertion of the learned counsel for the petitioners that the involvement of the petitioners is based on mala fide and malicious intent is an assertion which 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 petitioners during the investigation of the case. In view of the peculiar facts of the case, sending the petitioners behind bars at this stage, would cause irreparable loss to their 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 petitioners namely Nauman Hussain and Allah Ditta by this Court, vide order dated 13.09.2022, is confirmed subject to their furnishing fresh bail bonds in the sum of Rs. 200,000/-(Rupees Two Hundred Thousand only) each, with two sureties each, 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. Furthermore, a direction is issued to the Investigating Officer of the case to complete the investigation of the case within the next three days positively and the S.H.O. concerned is directed to submit the report under Section 173, Cr.P.C. within the next ten days positively. Furthermore, the learned trial Court is directed to conclude the trial of the case expeditiously, preferably, within a period of three months after taking cognizance of the case. If the delay in conclusion of the trial is occasioned by any act of the petitioners or any person acting on their behalf, or if the petitioners absent themselves from the learned trial Court or if the petitioners misuse the concession of the bail in any manner, the learned trial Court shall be at liberty to cancel the bail of the petitioners, in accordance with the law.
(A.A.K.) Petition allowed
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