MUHAMMAD TAYYAB KHAN and 2 others vs THE STATE
This is an application under sections 497 and 498 of the Code of Criminal Procedure 1898 seeking pre-arrest bail in respect of an F.I.R. registered under sections 336, 337-L(2), 337-A(i), 379, 148, and 149 of the Pakistan Penal Code 1860 arising from a dispute over shop possession. The core legal question revolves around whether the petitioners are entitled to pre-arrest bail considering police findings of innocence for one petitioner, the bailable nature of certain attributed injuries, and the doubtful manner of the occurrence. The Lahore High Court held that the application is accepted and pre-arrest bail is confirmed, noting that police opinion of innocence though not binding can be considered, the prosecution story under section 336 of the Pakistan Penal Code 1860 had become doubtful, and the possibility of false implication due to a property dispute could not be ruled out. The key principle laid down is that police opinion regarding innocence during investigation, alongside surrounding circumstances of a property dispute and simple nature of injuries, can warrant the confirmation of pre-arrest bail.
- Can police opinion regarding the innocence of an accused during investigation be considered by the court for the grant of bail?
- Whether pre-arrest bail can be confirmed when the manner of occurrence narrated in the F.I.R. becomes doubtful due to a property dispute?
- Section 497, Code of Criminal Procedure 1898
- Section 498, Code of Criminal Procedure 1898
- Section 336, Pakistan Penal Code 1860
- Section 337-L(2), Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 379, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
' Through this application under sections 497/498, Cr.P.C. The petitioners seek bail before arrest in case F.I.R. No.441 dated 31-12-2004 registered under sections 336/337-L(2)/337-A(i)/379/ 148/ 149, P.P.C. At Police Station, City Chichawatni, District Sahiwal on the application of Khushi Muhammad.
2. The brief facts narrated in the F.I.R. Are that the complainant had obtained a Shop No.17-A from Tehsil Municipal Administration Chichawatni on rent. Faryad Hussain was running the said shop. On 28-12-2004 at about 2-00 p.m. The complainant along with Faryad Hussain and Muhammad Iqbal was present on the said shop. All of a sudden Tayyab armed with Mouser, Tahir armed with rifle and Iqbal armed with pistol came at the spot and asked Faryad to hand over the possession Which was refused. Thereupon Muhammad Tayyab who was armed with mouser gave butt blow hitting on the upper lip of Faryad Hussain and two teeth were broken and jaw was also damaged.
Similarly, Tahir petitioner gave butt blow with his rifle which hit Faryad Hussain on his forehead, while Iqbal, petitioner also gave butt blow with his pistol hitting on the head of Faryad HuSsain whereupon he fell down. Unknown person also gave Sota blow on th4 back of Faryad Hussain.
When complainant and Muhammad Iqbal came forward to rescue Faryad Hussain, the accused persons pointed fire-arms weapons towards them while raising threats of dire consequences if came near them._ All the accused also dismantled the shop and took away certain articles of its construction material.
3. The motive behind the occurrence was alleged that the accused persons wanted to take physical possession of the shop through terrorism.
4. Learned counsel for the petitioners contends that Muhammad Tayyab, petitioner has been found innocent by the police. It is next contended that the allegation against two other petitioners is that they caused injuries falling under sections 337-L(2)/337-A(i), P.P.C., which offences are bailable. It is further contended that the petitioners have been falsely implicated in the present case.
5. Learned State counsel opposes the bail application.
6. I have heard the argiiments of learned counsel for the parties and also perused She record. The dispute between the parties is regarding the possession of the disputed property. Both the parties claim their possession on the said property while the injuries attributed to Iqbal and Tahir petitioners are simple in nature. Moreover, A.S.P. During the investigation came to the conclusion that Tayyab petitioner was not present at the spot. Though opinion of the police is not binding on the Courts yet it can be considered in proper cases and in the specific circumstances of the case for grant of bail to accused persons. In the final Zimni A.S.P. Has given opinion that petitioner Tayyab was innocent and that no weapon was used as alleged by the complainant, but only kicks and fist blows were given by Iqbal and Tahir petitioners. As such to the extent of offence under section 336, P.P.C. The prosecution story has become doubtful. Moreover, the complainant according to the A.S.P. Has also sworn affidavit in favour of the accused that he does not want to prosecute this case but the said affidavit cannot be considered unless the complainant appears before this Court. However, as the petitioners are not involved in any other case according to the police record and in the present case the occurrence had not taken place in the manner as narrated by the complainant, hence chances of false implication of the petitioners due to dispute over possession of the shop cannot be ruled out. Hence, this application is accepted and ad interim pre-arrest bail already granted to the petitioners vide order dated 19-1-2005 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.1,00,000 each with two sureties each in the like amount to the satisfaction of learned Illaqa/Judicial Magistrate.