MUHAMMAD ZAFAR ULLAH KHAN vs KAMRAN KHAN and 2 others
This matter comes before the Lahore High Court upon a petition filed by the petitioner seeking the cancellation of pre-arrest bail granted to respondents Nos.1 and 2 by the Additional Sessions Judge in case F.I.R. No. 768 registered under sections 324, 337-L(ii), 148, and 149 of the Pakistan Penal Code. The core legal question is whether pre-arrest bail was rightly granted to the respondents who were specifically nominated in the F.I.R. and attributed firearm injuries resulting in fractures falling within prohibitory clauses. The court held that pre-arrest bail is an extraordinary remedy and the impugned order granting bail was passed without cogent reasoning and in violation of established legal principles, particularly where the accused were attributed serious injuries and their custodial interrogation was required. Consequently, the High Court allowed the petition and recalled the pre-arrest bail granted to the respondents, while clarifying that any subsequent post-arrest bail application shall be decided on its own merits.
- Whether pre-arrest bail can be granted to an accused person who is specifically nominated and attributed firearm injuries falling within the prohibitory clauses?
- Does the mere opinion of an Investigating Officer provide sufficient ground for granting pre-arrest bail in the face of incriminating statements from an injured prosecution witness?
- Whether pre-arrest bail granted without cogent reasoning and in disregard of settled principles of the apex court is liable to be recalled?
- Section 324, Pakistan Penal Code 1860
- Section 337-F(v), Pakistan Penal Code 1860
- Section 337-F(vi), Pakistan Penal Code 1860
- Section 337-L(ii), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' MUHAMMAD AHSAN BHOON, J.---The petitioner, through this petition, seeks cancellation of pre- arrest to respondents Nos.1 and 2 (Kamran Khan and Ikram Ullah Khan) by the learned Additional Sessions Judge, Jaranwala District Faisalabad vide his order dated 29-2-2008 in case F.I.R. No,768 dated 16-11-2007, registered under sections 324/ 337-L (ii)/148/149, P.P.C. With Police Station, Lundianwala District Faisalabad, on the grounds that pre-arrest bail is extraordinary remedy which can be granted unless mala fide, or ulterior motive of complainant is established; that both respondents Nos.1 and 2 were duly nominated in the F.I.R. And were attributed specific role of causing fire-arm injuries on the person of Latif Ullah injured P.W. And in result of injuries caused by respondent No,1 fracture was found on the right arm of injured Latif Ullah causing injury Ghairjaifa Munaqqillah falling under section, 337-F(vi) for which punishment is provided seven years, whereas injury caused by respondent. No,2 hitting the injured on his upper part of right thigh and same is Ghairjaifa Hashimah which falls under section 337-F (v), P.P.C; that cross version lodged by the respondents was found false during the investigation and that the respondents have committed offence under section 337-F(v) & (vi), P.P.C. And their persons were requirement for the purpose of investigation. Relies on Malik Zafar Abbas, v. Agha Raza Abbas Qazilbash and another (PLD 2002 SC 529).
2. On the other hand, learned counsel for respondents Nos.1 and 2 opposed the cancellation of bail and argued that the respondent were rightly given concession of pre-arrest bail by the learned Additional Sessions Judge; that no case was made out against them. The learned D.P.G. Supported the version of the petitioner and argued that extraordinary relief is granted to an innocent person to save from harassm ent and victimization at the hands of the police and respondents Nos.1 and 2 were not entitled to the concession of pre-arrest bail.
3. Heard. Record perused.
4. Respondents are charged under sections 324/337-F (v, vi), P.P.C. Pre-arrest bail is an extraordinary remedy granted to innocent persons to ,save them from humiliation and victimization at the hands of police. No mala fide has been alleged against the police or complainant to falsely implicate the respondents. Reference can be had to Murad Khan v. Fazal- eSubhan and another (PLD 1983 SC 82); Zamir ul Hassan v. The State (PLD 1982 SC 192) and Malik Zafar Abbas v. Agha Raza Abbas Qazilbash and another (PLD 2002 SC 529).
5. Respondent No,1 has caused firearm injury hitting right upper arm of the injury P.W. Which was found communated fracture falling under section 337-F (vi), P.P.C. Whereas injury caused by respondent No,2 was yet another fracture of upper part of right thigh falling under section 337-F (v), P.P.C. The impugned order granting bail to respondent Nos.1 and 2 is not based on any cogent reasoning rather it is in violation of law declared by the Honourable apex Court in the cases mentioned above. Mere opinion of the A Investigation Officer that Kamran Khan respondent No,1 was found empty handed, in presence of statement of injured P.W, was no ground for extraordinary concession of pre-arrest bail. Recoveries are yet to be effected from the respondents and they were found guilty during the investigating offence under section 324, P.P.C. Is also attracted which falls within prohibition contained under section 497, Cr.P.C.
6. In view of what has been discussed above, this petition is allowed, and order passed by the learned Additional Sessions Judge, for grant of pre-arrest bail to respondents Nos.1 and 2 being against the principles settled by the Honourable Supreme Court, is hereby re-called. However, it is observed that the learned trial Court shall not be influenced in any manner of the observation made above and will be free to decide post arrest bail application of respondents Nos.1 and 2, on its own merits.