PLJ 2024 Cr.C. (Note) 120
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
IKHLAQ AHMAD--Petitioner
versus
STATE, etc.--Respondents
Crl. Misc. No. 54336-B of 2021, decided on 17.11.2021.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 324, 365, 395, 148 & 149--Pre-arrest bail, grant of--Allegation of--Attempt to murder--No explanation of delay in lodging FIR--Two version case--This dichotomy will be determined by learned trial Court after recording and evaluating evidence that which of A versions is correct--At this moment, case of petitioner squarely falls within remit of inquisitiveness--In recent pronouncements of Hon’ble Supreme Court of Pakistan that factum of mala fide can also be inferred and deduced from facts and circumstances of case--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 Country in case titled as “Khair Muhammad and another vs. The State through P.G. Punjab and another” (2021 SCMR 130) wherein it has been held that while granting pre-arrest bail even merits of case can be touched upon.
[Para 5, 7 & 8] A, B & C
2012 SCMR 1137, PLD 2017 SC 730, 2021 SCMR 130 &
PLD 2021 SC 898.
Mr. Sajjad Ahmad Ch., Advocate for Petitioner.
Hafiz Asghar Ali, DPG for State.
Mian Zulfiqar Ali, Advocate for injured Mian Tariq Mehmood.
Date of hearing: 17.11.2021.
Order
Through this petition, Ikhlaq Ahmad, the petitioner, seeks pre-arrest bail in case FIR No. 372 dated 02-07-2019 under Sections 324, 365,395,148,149, PPC subsequently added offence under Sections 367, 337-A(i), 337-V(2), 337-F(i), 337-F(vi), 337-F(iii), 337-L(2), 412, PPC registered with Police Station Kunjah, District Gujrat.
2. Tersely, the facts of the case as spelt out from the FIR is that on 01-07-2019 at about 04:00 p.m., Ch. Fayyaz Ahmad, complainant along with other police officials were on patrolling duty at Village Samman Pindi, on receiving information through 15 that someone was continuously firing in the village and upon information, he alongwith others reached at the spot and one Muhammad Asif was found lying in injured condition, whose both legs were shot by firearm weapon. Upon query, he told that he was serving as a gun man with Ex-MPA Mian Tariq Mahmood, who was proceeded to his home after inauguration ceremony of service station and cement Block Factory, Muhammad Ilyas was also accompanied with them for farewell, when they reached along with the car then all of sudden two vehicles and three motorcycles boarding six persons stopped near the car of Mian Tariq Mahmood. One person namely Ejaz Ahmad alighted from the black coloured vehicle armed with Kalashnikov, Ikhlaq Ahmad armed with Kalashnikov, Noman armed with 9-mm pistol, two unknown persons armed with deadly weapons also riding on three motorcycles, who can be identified by the complainant and Mian Tariq Mahmood whenever they come in front of them. Ejaz Ahmad raised Lalkara to teach a lesson to Mian Tariq Mahmood political opponent and he would be murdered after abduction. Muhammad Asif, injured came forward to rescue him upon which Ejaz Ahmad made straight firing with his respective weapon, which landed on the lower part of his right leg, Ikhlaq Ahmad made second fire with Kalashnikov with the intention to commit murder which also landed at the lower part of left leg of Muhammad Asif, injured. The accused also snatched the lincensed Kalashnikov owned by Mian Tariq Mahmood from the injured person. The accused Noman armed with 9-MM pistol also hit at the forehead of Muhammad Ilyas with the butt of his pistol. Accused Zeeshan also abducted Mian Tariq Mahmood and fled away. Hence, this FIR.
3. I have mused over the arguments advanced by learned counsel for the petitioner as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant.
4. According to the prosecution story occurrence in this case took place on 01-07-2019 at 04:30 p.m., whereas matter was reported on 02-07-2019 at 10:00 p.m. in lodging the FIR, in this way there is a delay of 29 hours and 30 minutes. There is no explanation of such delay which manifests that FIR has been got registered after due deliberation and consultation. I fortify my view from the dictum laid down in case 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. After going through the narration of FIR and evidentiary material collected by the police and presented before this Court, it divulges that first investigation was conducted by Ilyas Ahmad, ASI, Police Station Kunjah, District Gujrat and vide case diary No. 27 dated 01-08-2019, the petitioner was declared innocent. Thereafter, second investigation was conducted by Mudassar Iqbal, DSP/SDPO, who vide case diary No. 87 dated 26-06-2020 opined that the presence of the petitioner at Chak Pindi and Rania has not been proved, however, the petitioner after receiving the information qua the occurrence made a phone call to accused to bring Mian Tariq Mehmood at Bridge Canal Jora, who reached there and subsequently Ikhlaq Ahmad got rescued Mian Tariq Mehmood from the clutches of accused persons and in the meanwhile hot words were exchanged between Ikhlaq Ahmad and Mian Tariq Mehmood except this no over act was ascribed to him in the instant case. Afterwards, 3rd investigation in this case was also conducted by Ansar Farooq, Inspector/RIB, Gujranwala, who vide case diary No. 100 dated 15-02-2021 opined that at the time of occurrence the presence of Ikhlaq Ahmad, petitioner was verified at Rawayat Marriage Hall Denga but after receiving information of occurrence he reached at the place of occurrence and reprimanded Mian Tariq and in his presence other co-accused again tortured Mian Tariq Mehmood. In the light of supra mentioned facts, case of prosecution has become of two versions one put forth by the complainant in the FIR, whereas other in the shape of finding of the police. This dichotomy will be determined by the learned trial Court after recording and evaluating the evidence that which of the versions is correct. At this moment, the case of the petitioner squarely falls within the remit of inquisitiveness. Reliance can be placed upon the case laws titled as “Ehsan Ullah vs. The State” (2012 SCMR 1137) wherein it has been held by the Hon’ble Supreme Court of Pakistan as under:
“This shows that in the present case the prosecution itself has two versions vis-à-vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused form behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt.”
Similar view has been reiterated by the august Supreme Court of Pakistan in the case reported as “Syed Darbar Ali Shah and others vs. The State” (2015 SCMR 879).
6. It is vehemently argued by learned Deputy Prosecutor General assisted by learned counsel for the complainant that recovery of weapon of offence is yet to be effected from the petitioner and on this score, the petitioner is not entitled for the confirmation of pre-arrest bail. I am not in agreement with the argument advanced by him, because in all the three investigations it has been opined by the Investigating Officer that he had not caused any injury to anyone.
7. It has also been argued with vehemence by learned counsel for Mian Tariq Mehmood, injured that petitioner has failed to point out any mala fide or ulterior motive on the part of prosecution, for the reasons he is not entitled for concession of discretionary relief of pre-arrest bail. It is noteworthy that element of mala fide is floating on the surface of record. More so, it has been held in recent pronouncements of Hon’ble Supreme Court of Pakistan that factum of mala fide can also be inferred and deduced 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 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.”
Likewise, in the case of “Shahzada Qaiser Arfat alias Qaiser vs. 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 ....
8. 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) wherein 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 Husain alias Joji vs. The State” (PLD 2021 SC 898).
9. The epitome of above discussion is that the petitioner has 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 petitioner vide order dated 10-09-2021 is confirmed subject to his furnishing of fresh bail bonds in the sum of Rs. 100,000/-(Rupees one hundred thousand only) with one surety, in the like amount to the satisfaction of the learned trial Court.
10. Needless to mention that observations made in the above order are tentative in nature and shall not influence the learned trial Court in any manner.
(A.A.K.) Petition allowed
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