PLJ 2026 Cr.C. (Note) 29
[Lahore High Court, Lahore]
Present: Sadiq Mahmud Khurram, J.
MUHAMMAD NAEEM alias DANI and another--Petitioners
versus
STATE and another--Respondents
Crl. Misc. No. 6734-B of 2023, decided on 5.10.2023.
Criminal Procedure Code, 1898 (V of 1898)--
- ایس ۔ 498-پاکستان پینل کوڈ ، 1860 (1860 کا ایکس ایل وی) ایس ۔ 302 ، 324 ، 109 ، 148 اور 149-قبل از گرفتاری ضمانت ، کی منظوری - - قتل کا الزام - یہ گرفتاری سے پہلے کی ضمانت ہے اور اس مرحلے پر عدالت کے سامنے پیش کیے گئے شواہد پر مبنی مواد کا صرف عارضی جائزہ لیا جانا ہے ۔ درخواست گزاروں کی گرفتاری وصولی کے مقصد کے لیے ضروری نہیں ہے اور کہا گیا مقصد تفتیشی افسر کے ذریعے سرچ وارنٹ حاصل کر کے حاصل کیا جا سکتا ہے ۔ درخواست گزاروں کا اپنے شریک ملزم سے گہرا تعلق ہے ، اس لیے اس بات کا امکان موجود ہے کہ وہ اپنے شریک ملزم کے ساتھ درخواست گزاروں کے مذکورہ تعلقات کی وجہ سے اس معاملے میں ملوث رہے ہوں ۔ درخواست گزاروں کے وکیل کا یہ دعوی کہ درخواست گزاروں کی شمولیت بدنیتی اور بدنیتی پر مبنی ہے ، ایک ایسا دعوی ہے جسے اس مرحلے پر بنیاد اور بنیاد کے بغیر نہیں کہا جا سکتا ۔ - تفتیشی افسر پہلے ہی ہے کیس کی تحقیقات کے دوران شکایت کنندہ کے ساتھ ساتھ درخواست گزاروں کے تصدیق شدہ بیانات-کیس کے مخصوص حقائق کے پیش نظر ، اس مرحلے پر درخواست گزاروں کو سلاخوں کے پیچھے بھیجنے سے ان کی ساکھ کو ناقابل تلافی نقصان پہنچے گا اور اس سے کوئی فائدہ مند مقصد حاصل نہیں ہوگا ۔
----S. 498--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 302, 324, 109, 148 & 149--Pre-arrest bail, grant of--Allegation of murder--This is a pre-arrest bail and only a tentative assessment of evidentiary material produced before Court is to be made at this stage--The arrest of petitioners is not necessary for purpose of recovery and said purpose can be achieved by procuring a search warrant by Investigating Officer--The petitioners are closely related to their co-accused, hence, a possibility does exist that they have been involved in this case due to said relationship of petitioners with their co-accused--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, B & C
PLJ 2018 SC 445 & PLD 2017 SC 730.
Rana Jahanzaib Khan, Advocate with Petitioners.
Mr. Muhammad Umar Farooq Khan, Additional Prosecutor General for State.
Malik Naseer Ahmad Thaheem, Advocate for Respondent No. 2/Complainant.
Date of hearing: 5.10.2023.
Order
Through this petition filed under Section 498, Cr.P.C. the petitioners, namely Muhammad Naeem alias Dani and Muhammad Ramzan alias Rami, seek pre-arrest bail in case FIR No. 1011 of 2023, dated 14.07.2023, registered in respect of offences under Sections 302, 324, 109, 148 and 149, P.P.C. at Police Station Alpa, District Multan.
2. The allegations as against the petitioners, namely Muhammad Naeem alias Dani and Muhammad Ramzan alias Rami, culled from the evidentiary material produced before the Court, are that they along with their co-accused, eight in total (five of the accused were named in the F.I.R whereas it was got recorded that they were accompanied by three unknown accused persons), attacked the complainant party and the petitioner namely Muhammad Ramzan alias Rami, while armed with a pistol, fired at Khizer Hayyat alias Fayyaz (deceased) albeit missing his target and the petitioner namely Muhammad Naeem alias Dani, while armed with a pistol, also fired at Khizer Hayyat alias Fayyaz (deceased) albeit missing his target too. It was further recorded in the F.I.R that Jafar Haraj, the co-accused of the petitioner, while armed with a pistol, fired repeatedly at Khizer Hayyat alias Fayyaz (deceased) committing his Qatl-i-Amd.
3. I have heard the learned counsel for the petitioners, the learned Additional Prosecutor General, the learned counsel for the complainant, 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. The allegations as against the petitioners, namely Muhammad Naeem alias Dani and Muhammad Ramzan alias Rami are that they along with their co-accused, eight in total (five of the accused were named in the F.I.R whereas it was got recorded that they were accompanied by three unknown accused persons), attacked the complainant party and the petitioner namely Muhammad Ramzan alias Rami, while armed with a pistol, fired at Khizer Hayyat alias Fayyaz (deceased) albeit missing his target and the petitioner namely Muhammad Naeem alias Dani, while armed with a pistol, also fired at Khizer Hayyat alias Fayyaz (deceased) albeit missing his target too. It was further recorded in the F.I.R that Jafar Haraj, the co-accused of the petitioner, while armed with a pistol, fired repeatedly Khizer Hayyat alias Fayyaz (deceased) committing his Qatl-i-Amd. The fact as to when there was no dearth of intent or ammunition on part of the petitioners which could have precluded them from firing and hitting the deceased, then the question as to why they had chosen not to fire effectively at the deceased, is a question which needs determination by the learned trial Court, however, prima facie, at present, the choice of the petitioners of not hitting the deceased in any manner, despite being armed with pistols, is reflective of the possibility that they were not sharing the common object of the unlawful assembly which had gathered at the place of occurrence. The question as to whether Jafar Haraj, the co-accused of the petitioners, who had fired repeatedly at the deceased needed any help or assistance of the petitioners in the Commission of the dastardly acts and the question as to whether the petitioners, in any manner, facilitated their co-accused during the commission of various offences, are the questions which shall be determined by learned trial Court, however, at present, no such determination can be made. The allegations as leveled against the petitioners, are easy to level but difficult to prove the obvious reason that their actions are not reflected in the Post-Mortem Examination Report of the deceased. The Investigating Officer of the case submits that the the petitioners, were armed with weapons at the time of occurrence; therefore, the same are to be recovered from their possession. The learned counsel appearing on behalf of the Respondent No. 2/complainant has vehemently argued that as the recoveries are to be made from the petitioners, therefore, they do not deserve to be extended extraordinary relief of pre-arrest bail. Suffice 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.”
The petitioners are closely related to their co-accused, hence, a possibility does exist that they have been involved in this case due to the said relationship of the petitioners with their co-accused. 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 petitioners, by this Court, vide order dated 21.09.2023, is confirmed subject to their furnishing fresh bail bonds in the sum of Rs. 500,000/-(Rupees Five 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.
(A.A.K.) Petition allowed
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