ZULFIQAR and another vs THE STATE
This matter comes before the Lahore High Court through a petition seeking pre-arrest bail in case F.I.R. No. 438 dated 1-8-2006, registered under Sections 458, 506, 148, and 149 of the Pakistan Penal Code 1860 at Police Station Malikwal, District Mandi Bahauddin. The core legal question concerns whether the petitioners are entitled to pre-arrest bail given their nomination in the FIR with a specific role, non-recovery of the weapon of offence, misuse of interim bail concessions, and failure to join the investigation. The court held that pre-arrest bail is an extraordinary remedy, and the petitioner failed to establish mala fide on the part of the complainant, while sufficient incriminating material and a non-bailable offence punishable up to 14 years existed on record. The petition was consequently dismissed, and the interim pre-arrest bail was recalled. The key principles laid down are that the ipse dixit of the police declaring an accused innocent without cogent material is not binding, and the misuse of interim bail disentitles an accused to extraordinary relief.
- Is the opinion of the police declaring an accused innocent binding on the court during a bail hearing?
- Does the failure of an accused to join the investigation and attend court hearings justify the dismissal of a pre-arrest bail petition?
- Whether pre-arrest bail can be granted when the accused is nominated in the FIR with a specific role and the weapon of offence remains unrecovered?
- Section 458, Pakistan Penal Code 1860
- Section 506, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
TARIQ SHAMIM, J.---Through this petition, the petitioner seeks bail before arrest in case F.I.R. No,438, dated 1-8-2006 for offences under sections 458, 506, 148, and 149, P.P.C. Registered at Police Station, Malikwal, District Mandi Bahauddin.
2. Brief facts of the case are that the petitioner along with others is alleged to have committed lurking house trespass into the house, of the complainant at night while armed with a rifle and of having extended threats of life to the complainant and others.
3. The learned counsel for the petitioner contended that the co-accused of the petitioner namely Sarwar has been granted bail after arrest by the learned trial Court, that no injury had been attributed to the petitioner; that the petitioner was falsely involved in the case on account of mala fide of the complainant and that during investigation all the caused including the petitioner were declared innocent by the police, hence, the petitioner was entitled to the concession of bail.
4. On the other hand learned counsel appearing on behalf of the learned counsel for the State contended that the petitioner had been nominated in the F.I.R. And specific role had been attributed to him; that the rifle, the weapon of offence had yet to be recovered from the petitioner; that although the police had declared the petitioner innocent yet ipse dixit of the police was not binding as the same was not based on cogent material; that the case of the prosecution was fully supported by the P.Ws. Mentioned in the F.I.R.; that the offence of lurking house trespass was punishable with imprisonment for 14 years, hence the petitioner was not entitled to the concession of pre-arrest bail.
5. I have heard the learned counsel for the parties and perused the record.
6. The record reveals that the petitioner is nominated in the F.I.R. And specific role has been attributed to him. The grant of pre-arrest bail is an extraordinary relief. The petitioner has failed to prove any mala fide or ulterior motive on the part of the complainant or the police for his false involvement in the case. The petitioner has further not joined investigation after the grant of ad interim bail. Further, when the application of the petitioner for confirmation bail was fixed before the learned Additional Sessions Judge, Mandi Bahauddin the petitioner failed to appear before the Court. Thus, the petitioner has misused the concession of ad interim arrest bail to him by the learned trial Court. Although the petitioner was declared innocent during investigation, a perusal the record reveals that the only ground on the basis of which the police, had declared him innocent was that on the date fixed for hearing the complainant did not appear before the Investigating Officer. This by itself is not sufficient to form an opinion of innocence in respect of the petitioners and others. The weapon of offence, rifle, which was used during the occurrence by the petitioner, has yet to be recovered from him, who has been successfully evading his arrest since the registration of the F.I.R. The offence of lurking house trespass, is punishable with imprisonment for 14 which squarely falls within the ambit of subsection (1) of section 497, Cr.P.C. A tentative assessm ent of the evidence on record reveals that prima facie there is sufficient incriminating material available on the record against the petitioner.
7. Resultantly this petition being without any merit is dismissed and ad interim pre-arrest bail granted to the petitioner vide order dated 7-9-2006 is recalled.