NASIR MAHBOOB vs STATE
This matter concerns a petition for pre-arrest bail filed by an accused person named in an FIR for murder. The core legal question was whether the petitioner, who raised a plea of alibi supported by affidavits, was entitled to confirmation of interim pre-arrest bail despite being named in the FIR with a specific role and facing conflicting affidavits regarding his presence at the crime scene. The Court held that it would not delve into the deeper appreciation of evidence or determine the authenticity of the conflicting affidavits at the pre-arrest bail stage. Consequently, the Court declined to confirm the interim bail, holding that where an accused is named in the FIR with a specific role and there is a conflict in evidence, pre-arrest bail is not appropriate. The key principle laid down is that the stage of pre-arrest bail is not the appropriate forum for resolving factual disputes or conducting a deeper appreciation of evidence, particularly when there are conflicting claims regarding the presence of the accused at the scene of the occurrence.
- Is the stage of pre-arrest bail appropriate for determining the authenticity of conflicting affidavits regarding an alibi?
- Should interim pre-arrest bail be confirmed when the accused is named in the FIR with a specific role and there is conflicting evidence?
- Does the court have the authority to conduct a deep appreciation of evidence during pre-arrest bail proceedings?
- Section 497, Code of Criminal Procedure 1898
- Article 163, Qanun-e-Shahadat Order 1984
ORDER
Learned counsel for the petitioner in support of this petition submits that the petitioner has been falsely implicated in this case, that there is long standing enmity between the parties and they are daggers drawn. He submits that there is no injured eye witnesses, although, according to the learned counsel, so many fires were made at the spot but only one person, the deceased received the injuries, that the petitioner at the very outset has raised the plea of alibi and in this regard he has placed many affidavits of the advocates stating therein that the petitioner remained with them on the day of occurrence from 1.30 p.m. to 2-30 p.m. He submits that the petitioner had also appeared in a civil suit in the Lahore Civil Court and he signed one of the interim order dated 21.4.2004 also. Learned counsel submits that infact it is a case of no evidence and the same is covered by sub-section .(2) of Section 497 Cr.P.C. Learned counsel for the petitioner has relied upon 1975 SCM R 151, 1975 SCM R 219, 1986 P.Cr.L.J. 1091, PLD 1990 Lahore 161 and PLJ 1997 S.C. (AJK)
349.
2. On the other hand learned counsel for the complainant submits that if the petitioner is an Advocate on the other side brother of an Advocate has been murdered. He submits that it is a broad day light occurrence with promptly lodged FIR. Petitioner is named in the FIR with specific role. Ocular account is corroborated by medical evidence and that so many affidavits have also been placed on the record from the complainant side including Advocates stating therein that the petitioner was present at the spot on the day of occurrence at the relevant time. He further submits that plea of alibi for the first time was raised 15 days after the occurrence, that there were no special circumstances in this case that application of the petitioner for bail before arrest was entertained directly by this Court, although his co-accused are also on interim bail before arrest granted by the learned Sessions Judge, Khushab. He submits that every criminal case is to be decided on its own facts and merits, that there was no malafide or ulterior motive on behalf of the complainant and the police. He has relied upon PLD 1990 S.0 83 and has read the relevant portion i.e. headnote (e) before this Court. He has also referred sub-clause (3) of Article 163 of Qanun-e- Shahadat Order, 1984. He submits that it is not a case of bail before arrest.
3. On the other hand learned Addl. Advocate General assisted .by the learned state counsel submits that petitioner is name in the FIR with specific role of causing injury to the deceased, that there are affidavits from both the sides and this is not the proper stage to determine the authenticity of the affidavits. He submits that the case law produced by the learned counsel for the petitioner is not applicable in the instant case because in those cases there were no counter affidavits as are in the instant case, that the police till today is of the opinion that the petitioner is guilty in this case because according to the police the petitioner has failed to produce any solid evidence in his favour.
4. I have heard the learned counsel for the parties and also have gone through the record. I had entertained this application because it was stated before me at bar that the life of the petitioner is in danger and if this application is not entertained here then there will be many risks to his life:
5. From both the sides affidavits have been produced. I would not like to say anything about the authenticity of the affidavits filed by both the parties but the fact remains that this is a case of bail before arrest in which 4 petitioner is named in the FIR with role of causing a specific injury on the person of the deceased. So without going into deeper appreciation and touching the merits of the case, I am not inclined to confirm the interim bail before arrest. In this view of the matter the interim bail already granted to the petitioner is hereby withdrawn. Disposed of.