KHIZAR HAYAT and others vs THE STATE
This consolidated order decides two pre-arrest bail petitions filed by the petitioners in case F.I.R. No. 12 registered under section 302 read with section 34 of the Pakistan Penal Code 1860 at Police Station Kandiwal, District Jhang. The core legal question is whether the petitioners are entitled to pre-arrest bail in the circumstances of the case, considering factors like delayed F.I.R., shifting police investigations, absence of direct eyewitnesses to the fatal violence, lack of personal motive, and potential malice on the part of the complainant party, whose members, along with the deceased, had extensive criminal records. The Lahore High Court held that the petitions are to be accepted, confirming the ad interim pre-arrest bail previously granted. The key principle laid down is that where the investigation has vacillated, direct eyewitness accounts are lacking, the accused are public servants with no risk of absconsion, and malice on the part of the complainant party cannot be ruled out due to extensive criminal records of the complainant side, a case for pre-arrest bail is made out.
- Whether pre-arrest bail can be confirmed when the investigation shows shifting stances by police and possible malice by the complainant party?
- Does the lack of direct eyewitnesses to the fatal violence justify the confirmation of pre-arrest bail?
- Is the absence of personal motive and joined investigation relevant for granting pre-arrest bail in a murder case?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 316, Pakistan Penal Code 1860
ORDER
' ASIF SAEED KHAN KHOSA, J.--Through this consolidated order I propose to decide Criminal Miscellaneous No,10055-B of 2006 filed by Khizar Hayat and Nasrullah petitioners and Criminal Miscellaneous No,10195-B of 2006 preferred by Abid Hussain petitioner together as all these petitioners have sought pre-arrest bail in the self-same criminal case, i.e, case F.I.R. No,12 registered at Police Station Kandiwal, District, Jhang on 5-6-2004 in respect of an offence under section 302, P.P.C. Read with section 34, P.P.C. Earlier the petitioners had approached the Court of Session, Jhang for the same relief but their application in that respect was dismissed by the Additional Sessions Judge, Chiniot District Jhang vide order dated 25-9-2006. Hence, the present petitions before this Court.
2. After hearing the learned counsel for the petitioners and the learned Assistant Advocate-General appearing for the State and after going through the record of investigation of this case with their assistance it has been noticed by me that the F.I.R. In this case had been lodged with a delay of three days. The record further shows that at one stage during the investigation of this case section 302, P.P.C. Had been deleted from the F.I.R. And the same was substituted by section 316, P.P.C. But now section 302, P.P.C. Has statedly been restored in the F.I.R. Perusal of the F.I.R. Shows that the violence on Muhammad Akbar deceased immediately preceding his death had not been seen by any member of the complainant party and it was not known to the complainant party with any degree of certainty as to whether the present petitioners had physically participated in the same or not. The medical evidence available in this case shows that the cause of death of Muhammad Akbar deceased was A not readily discernable. It is not disputed that the present petitioners had no personal motive to do away with the deceased. The criminal case in hand had originated in the year 2004 and the same has been investigated by a number of police officers of different ranks.
Throughout the initial stages of the investigation of this case all the Investigating Officers had exonerated the petitioners vis-a-vis the offence under section 302, P.P.C. And at one stage the said penal provision had been formally deleted from the F.I.R. And the same had been substituted by section 316, P.P.C. I have been informed that recently some fresh investigation had been conducted, in this case and the last Investigating Officer has opined that the case in hand attracts an offence under section 302, P.P.C. It is not disputed that throughout the period of investigation of this case spanning over about two years the petitioners have always been joining the investigation. All the present petitioners are public servants and, thus, there is little likelihood of their absconscion in case of their admission to bail. The investigation of this case has already been finalized and, thus, physical custody of the petitioner is not likely to serve any beneficial purpose at such a stage.
3. The record of investigation of this case shows that Muhammad Akbar deceased was involved in as many as 115 criminal cases and even the complainant of this case namely Shera has himself remained involved in as many as 110 criminal cases. The learned counsel for the petitioners have maintained that the present criminal prosecution of the petitioners is a ploy by B the complainant party to pressurize the local police to go soft against the complainant party. In the peculiar circumstances of this case I have not found this submission of the learned counsel for the petitioners to be without any foundation or substance and, thus, malice on the part of complainant party cannot safely be ruled out of consideration at this stage.
4. For what has been discussed above both the above mentioned petitions are accepted and that ad interim pre-arrest bail already allowed to all the petitioners by his Court vide orders dated 7-12- 2006 and 11-12-2006 respectively is hereby confirmed subject of furnishing of fresh bail bonds by the petitioner in the sum of Rs,50,000 (Rupees fifty thousand only) each with two sureties each in the like amount to the satisfaction of the Area Magistrate of Police Station, Kandiwal, District Mang within a period of two weeks from today.