AHMAD KHAN and others vs THE STATE
The petitioners sought pre-arrest bail in respect of a criminal case registered under sections 452, 337-A(i), 337-A(ii), 337-L(2), 147, and 149 of the Pakistan Penal Code 1860, following an alleged house trespass and assault resulting in injuries. The core legal question was whether the petitioners were entitled to the extraordinary concession of pre-arrest bail when no mala fide had been alleged against the complainant or the police, and despite the offences not falling within the prohibitory clause of section 497(1) of the Code of Criminal Procedure 1898. The Lahore High Court held that the absence of the prohibitory clause does not automatically entitle an accused to pre-arrest bail. The court confirmed the pre-arrest bail for the first petitioner, a seventy-year-old man assigned only the role of raising a lalkara whose complicity required further probe, but dismissed the petition and withdrew bail for the remaining two petitioners due to the cruel manner of the attack.
- Does the fact that offences do not fall within the prohibitory clause of section 497(1) of the Code of Criminal Procedure 1898 automatically entitle an accused to pre-arrest bail?
- Is the absence of an allegation of mala fide against the complainant or police fatal to an application for pre-arrest bail?
- Does raising a lalkara by a frail and elderly accused warrant the confirmation of pre-arrest bail when further probe into complicity is required?
- Section 452, Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-L(2), Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
ORDER
' M. BILAL KHAN, J.---Ahmad Khan son of Muhammad Din, Khadim Ali son of Ahmad Khan and Shahid son of Khadim Ali, the petitioners, seek pre-arrest bail in case F.I.R. No,129 of 2005 dated 25- 10-2005, registered at Police Station Begowala, District Sialkot, for offences under sections 452, 337- A(i), 337-A(ii), 337-L(2), 147, 149, P . P. C .
2. The allegation against the petitioners and their co-accused (since absconding) was that they in Consultation with each other while armed with Dandas trespassed into the house of the complainant and raising Lalkara by Ahmad Khan petitioner they caused injuries to the complainant party. Resultantly the instant F.I.R. Had been recorded.
3. The petitioners applied for their pre-arrest bail, however, their application had been turned down by the learned Additional Sessions Judge, Daska, District Sialkot, vide order dated 23-11-2005.
Hence this petition.
4. I have heard the learned counsel for the parties and have perused the record.
5. It has straightaway been observed that no mala fide has been alleged against the complainant party or the police. The application moved before the learned Additional Sessions Judge, for the grant of pre-arrest bail also did not contain any such allegation. The petitioners as per the allegations acted in a very cruel manner and caused various injuries to the complainant party.
Although the offences charged with do not attract the prohibitory clause of section 497(1), Cr.P.C.
Yet this fact alone does not entitle them to the grant of pre-arrest bail which is an extraordinary concession. Ahmad Khan petitioner appears to be a frail and fragile man of seventy years and the only role attributed to him is that of raising Lalkara. His complicity in this case calls for further probe. Resultantly this petition to the extent of Ahmad Khan (petitioner No,1) is accepted and the interim pre-arrest bail granted to him vide order dated 6-12-2005 is confirmed. However, this application to the extent of Khadim Ali and Shahid, petitioners Nos.2 and 3 respectively is hereby dismissed and the order allowing pre-arrest bail to them dated supra is hereby withdrawn.
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