FAKHAR HAYAT etc. vs STATE
This matter arises from petitions for pre-arrest bail, post-arrest bail, and transfer of bail petitions concerning an occurrence involving a dispute over land. The core legal question involves determining whether the petitioners are entitled to pre-arrest and post-arrest bail when the offences do not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 and where certain petitioners were not named in the initial FIR. The Lahore High Court held that pre-arrest bail should be confirmed for petitioners whose cases are analogous to a co-accused already granted bail and who were not named in the FIR, and post-arrest bail should be granted since the offences do not fall within the prohibitory clause, reinforcing the principle that bail in such cases is a rule and refusal an exception. The key principle laid down is that where offences do not fall within the prohibitory clause, the grant of bail is the general rule and its refusal an exception.
- Whether pre-arrest bail can be confirmed for accused persons who were not named in the FIR and whose case is of similar nature to a co-accused already granted bail?
- Is bail to be granted as a rule and refused as an exception when the alleged offences do not fall within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898?
- What action is to be taken against the surety of an absconding petitioner whose ad interim pre-arrest bail petition is dismissed for non-appearance?
- Section 514, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
ORDER
This order shall dispose of Crl. Misc. No, 6529-B/2007 filed by Fakhar Hayat, KK hhalid Umar and Muhammad Akram for the grant of pre-arrest bail, Crl. Misc. No, 6530-B/2007 filed by Abdul Ghaffar and Abdul Jabbar for the grant of after arrest bail and Crl. Misc. No, 71T/2007 filed for the transfer of the above mentioned both the bail petitions. As far as Muhammad Akram petitioner is concerned, he is not present while remaining both the petitioners, namely, Fakhar Hayat and Khalid Umar are present in Court in person, so, bail before arrest petition to the extent of said Muhammad Akram is hereby dismissed. He was allowed ad interim pre-arrest bail by the learned Sessions Judge Kasur and his surety shall be proceeded against under Section 514 Cr.P.C. by him. Learned counsel for the petitioners in Crl. Misc. No, 6529-B/2007 filed by Fakhar Hayat and Khalid Umar for the grant of bail before arrest submits that they were not named in the FIR which was lodged with a delay of two days i,e, on 17.6.2007 while the occurrence in question had taken place on 15.9.2007. As far as bail after arrest petition bearing Crl. Misc. No, 6530-B/2007 filed by Abdul Ghaffar and Abdul Jabbar for the grant of after arrest bail, their learned counsel contends that they have falsely been implicated in this case; that in all fifteen accused were shown in the FIR, seven were named while eight were mentioned as unknown persons; that Khurram Shahzad, Tufail and Sabir were granted bail before arrest by the learned Sessions Judge Kasur; that case of petitioners Fakhar Hayat and Khalid Umar is similar to the case of Khurram Shahzad who was not named in the FIR; that in fact petitioners had taken land about five acres on lease from the Auqaf Department; that the occurrence in question had taken place in an open place where complainant party aggressed with the tenants of the petitioners; that the offence alleged against the petitioners does not fall within the prohibitory clause of Section 497(1) Cr.P.C. and in such like cases grant of bail is a rule while refusal is an exception.
2. Ch. Jamshed Hussain, Deputy Prosecutor General Punjab assisted by complainant's learned counsel, while opposing the bail petitions, submits that Ghaffar and Jabbar were named while Fakhar and Khalid Umar were named through supplementary statement with the allegation that they, in prosecution to their common object while forming an unlawful assembly, attacked the complainant and also gave him injuries; that he was medically examined in the night between 15/16.6.2007 and there are multiple abrasions and contusions on his body; that, the accused persons are terror in the area; that the case was investigated not by an Inspector but by an SP who found guilty all the accuse persons; that Akram petitioner; who has not turned up today, had even gave injuries on the person of one of the PWs, namely, Sahib Din which occurrence formed FIR No, 164 against the said Akram; that the petitioners party is threatening the complainant and the PWs of the instant case; that in fact the land where the occurrence had taken place is a Haveli of one Younis Khan; that heinous offence-has been committed by the petitioners and that. neither it is a case of bail before arrest nor after arrest.
3. I have heard learned counsel for the parties. I would not like to go into the controversy whether the possession of the land in question was with the petitioners or the complainant party and whether the said - land was taken on lease by the petitioners although many documents have been produced before this Court which includes a status quo order issued by the Evacuee Trust Property Department. Fakhar Hayat and Khalid Umar were not named in the FIR. A supplementary statement was made seven days after the occurrence i,e, on 22.6.2007. Their case is of similar in nature with Khurram Shahzad, who was allowed bail before arrest by the learned Sessions Judge Kasur, so, interim pre-arrest bail already granted to the petitioners Fakhar Hayat and Khalid Umar in Crl. Misc. No, 6529-B/2007 is hereby confirmed. So far as Cr1. Misc. No, 6530-B/2007 filed by Abdul Ghaffar and Abdul Jabbai for the grant of after arrest bail is concerned none of the offence falls within the prohibitory clause of Section 497(1) Cr.P.C. and in such like cases grant of bail is a rule while refusal is an exception so, while placing reliance on Tariq Bashir and 5 others vs. The State (PLD 1995 Supreme Court 34), Cr1. Misc. No, 6530-B/2007 filed by Abdul. Ghaffar and Abdul Jabbar for the grant of after arrest bail is allowed and the petitioners are admitted to bail provided they furnish bail bond in the sum of Rs, 50,000/-each with one surety each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. In the afore-referred circumstances, Crl.
Misc. No, 71-T/2007 filed for transfer of both the above mentioned bail petitions stands disposed of.