MUHAMMAD TARIQ vs STATE
This matter arises from a petition filed by Muhammad Tariq seeking pre-arrest bail in case FIR No. 362 registered at Police Station Bambanwala, District Sialkot, for offences under Sections 458, 380, and 392 of the Pakistan Penal Code 1860. The core legal question concerns whether the petitioner is entitled to pre-arrest bail given that he was not named in the FIR despite residing in the same village, the existence of previous litigation and animosity between the parties, and the subsequent discharge of the petitioner's brother after no recovery was effected. The Lahore High Court accepted the petition and confirmed the pre-arrest bail, holding that the cumulative circumstances—including the omission of the petitioner's name from the FIR, previous litigation, and lack of recovery from the co-accused brother—cast a shadow of doubt rendering the case one of further inquiry under subsection (2) of Section 497 of the Code of Criminal Procedure 1898. The key principle laid down is that mala fide, previous enmity, unexplained omission of a known accused from the FIR, and lack of recovery from a co-accused can make out a case for further inquiry justifying the confirmation of pre-arrest bail.
- Whether the omission of an accused's name from the FIR despite being a resident of the same village creates reasonable grounds for further inquiry under Section 497(2), Code of Criminal Procedure 1898?
- Can previous litigation and alleged mala fide on the part of the complainant and police form a sufficient basis for confirming pre-arrest bail?
- Does the discharge of a co-accused brother after no recovery affect the case against the petitioner for the purpose of bail?
- Section 458, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
- Section 392, Pakistan Penal Code 1860
- Section 423, Pakistan Penal Code 1860
- Section 382, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER.
Through this petition Muhammad Tariq petitioner has sought pre-arrest bail in case FIR No, 362 registered at Police Station Bambanwala, District Sialkot on 09.11.2007 for offences under Sections 458/380/392, PPC.
2. The occurrence narrated in the FIR is that Ghulam Rasool complainant was resident of mouza Othian. He was labourer by profession. He has four sons, out of whom three had settled in Kuwait for the last 8/10 years to earn their livelihood. On the night of occurrence the complainant was sleeping with his wife and daughter-in-law in his house. The door of his room was open. At about 12.00 O'clock three unknown persons came into his room after entering into the house through roof.
The accused awakened him by showing fire-arms and asked whatever cash or fire-arms he kept give it to them. One of them took Rs, 4000/- out of my pocket and also took one pair of earring and one ring from my wife who was sleeping another separated room. The accused also took a mobile phone mark Sainsong B 20 from my daughter-in law who was sleeping in third room. They also took keys of safe and got Rs, 50,000/- from it. The accused confined them in a room and took away with them the other articles after making search of the house. At their hue and my one neighbourer namely Munir came at the spot and opened" the door. After assessing the articles of the house the complainant party found that the accused took away three pairs of golden tops, three lockets, two lady rings, two children lockets, one rifle Pump action, one 12 bore and one computer. Out of the accused persons one stayed outside the house.
3. The learned counsel for the petitioner states that the petitioner is not named in the FIR though the complainant and the petitioner are residents of the same village. He has falsely been involved in this case on account of mala fide of the complainant as well as Liaquat Ali, SI who at the relevant time was posted at Police Station Bambanwala. He in connivance with the nephew of the complainant who had already registered a case vide FIR No, 333 dated 28.08.2007 under Sections 423/382, PPC against the petitioner, his father and brother. In that case pre-arrest bail of the petitioner was confirmed. Due to failure on the part of the complainant to get him arrested in that case the second false FIR was lodged. Even in that FIR the petitioner's name was not figured. Now just to cause illegal harassm ent and to take revenge he is being involved in this case. He further submits that brother of the petitioner was also arrested on 22.02.2008 on the supplementary statement of the complainant in this case and remained on physical remand for fourteen days with the investigating officer but when nothing was recovered from him, he was got discharged on 09.03.2008. This fact also found corroboration from the version of the complainant and shows his mala fide.
4. Learned Deputy Prosecutor-General states though the petitioner is not named in the FIR but serious allegation regarding the theft has been leveled against him and stolen property is yet to be recovered from him.
5. After hearing the learned counsel for parties and going through the record of this case I have straightaway noticed that the petitioner is not named in the FIR. The complainant and the investigating officer have not denied the fact that the accused and the complainant are not only the residents of the same village but they were also known to each other for the last many years.
The factum of arrest of the brother of the petitioner and his subsequent discharge from the Court of competent jurisdiction is also not denied by the investigating officer. Not only this the registration of FIR No, 333 dated 28.08.2008 is also admitted. Talat Siddique, ASI present in Court has admitted that the petitioner had been joining the investigation in this case. If it is not enough there exists previous litigation between the parties, the petitioner being resident of the same village was not named in the FIR, the brother of the petitioner who was arrested and thereafter got discharged from the case and no recovery was affected from him are the facts which constrained me to state that the shadow of doubts looming large in this case which of course render the case against the petitioner to be one of further inquiry into his guilt within the purview of subsection (2) of Section 497, Cr.P.C. This petition is therefore, accepted and the ad-interim pre-arrest bail already allowed to the petitioner is hereby confirmed subject to furnishing of a fresh bail bond in the sum of Rs, 1,00,000/- (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.