MUZAMMAL SHAH vs THE STATE and 2 otherss
This criminal matter concerns an application filed by the complainant seeking the cancellation of pre-arrest bail granted to respondents Nos. 2 and 3 by the District and Sessions Judge, Karachi West, in a case registered under Section 324 of the Pakistan Penal Code 1860. The core legal question was whether the trial court erred in granting pre-arrest bail without establishing the requisite element of mala fides on the part of the prosecution and without proper application of judicial mind, particularly given the severity of the injuries sustained by the victims. The High Court held that the trial court's order was invalid and unlawful, as it failed to address the essential condition of mala fides required for pre-arrest bail and overlooked the specific allegations of a murderous assault involving a sharp weapon. The Court emphasized that pre-arrest bail cannot be granted in violation of settled legal principles, specifically citing the requirements established in established precedents regarding the necessity of demonstrating malice. Consequently, the Court cancelled the pre-arrest bail granted to the respondents, while clarifying that the trial court retains the authority to consider any future post-arrest bail applications on their own merits.
- Is the absence of alleged mala fides on the part of the prosecution a valid ground for cancelling pre-arrest bail?
- Does the failure of a trial court to consider the requisite conditions for pre-arrest bail render the bail order invalid?
- Can a trial court grant pre-arrest bail without addressing the specific allegations of a murderous assault and the severity of injuries?
- Section 324, Pakistan Penal Code 1860
ORDER
1. ' MUHAMMAD MOOSA K. LEGHARI, J.---Through this application the complainant has prayed for cancellation of pre-arrest to respondents Nos.2 and 3 by District and Sessions Judge, Karachi West in Crime No,420 of 2305 registered at Police Station, Jackson, under section 324, P.P.C., wherein the applicants were accused of causing murderous assault upon the complainant Muzzamil Shah and his father Muhammad Younus as a result whereof both of them were seriously injured.
2. ' Besides raising different pleas, it is strenuously argued on behalf of the applicant/complainant that pre-arrest bail was granted in violation of settled principles of law, as no mala fides were alleged on the part of prosecution. It is contended that grievous injury was caused to Muhammad Younis on a most vital part of the body viz. Abdomen by way of stabbing, but due to grant of pre- arrest bail, the investigation was hampered and the evidence was destroyed.
3. ' Conversely, it is contended on behalf of respondents Nos.2 and 3 that respondents were granted bail on merits keeping in view the cross cases filed by the parties against each other, and by holding that the case of the respondents was of further inquiry as it was yet to be determined as who was the aggressor. Learned counsel for the respondents further contended that the complainant ought to have approached the trial Court first, further that now case has been challaned and respondents are not misusing the concession of bail.
4. ' Learned A.A.-G. Has not supported impugned order contending that role of attacking the complainant party and causing injuries to them has specifically been attributed to the respondents and that the trial Court committed illegality in overlooking the conditions required for grant of pre-arrest bail, as such the bail order was not sustainable in law.
5. ' Contentions raised have been considered and material placed on record has been perused.
6. ' Medical certificate of Muhammad Younus reveals that he sustained injury in his abdomen which was declared as Jurh Ghayr Jaiffah Munaqillah. Grievous injury caused with Chhurri viz., a sharp cutting weapon, inflicted on the abdomen was most likely to cause death of victim.
7. ' Besides the merits, the order passed by trial Court is absolutely silent with regard to any malice alleged on the part of the prosecution. Neither the same point was taken in arguments before the learned trial Court nor he has taken into consideration the requisite condition for A grant of pre- arrest bail. Thus the pre-arrest bail was granted to the respondents Nos.2 and 3 in flagrant violation of the settled principles of law laid down in the case of Murad Khan PLD 1983 SC 82 and Zia- ulHassan v. The State PLD 1984 SC 192, and certainly without proper application of mind.
8. ' In the circumstances, the order passed by trial Court is invalid, and unlawful, it needs to be reversed. Consequently pre-arrest to respondents Nos. 2 and 3 is cancelled. The trial Court shall take appropriate action.
9. ' Needless to state that this order will not divest the powers of trial Court to consider post arrest application for bail, on it's own merits if, and when moved.
10. Bail cancelled.