FALAK SHER vs THE STATE and another
This matter concerns a petition filed under the Code of Criminal Procedure 1898, seeking the cancellation of pre-arrest bail granted to respondent No. 2 by the Additional Sessions Judge, Okara, in a case registered under Sections 302, 148, and 149 of the Pakistan Penal Code 1860. The core legal question was whether the respondent, who was named in the F.I.R. but alleged to have played no significant role in the murder, was entitled to the concession of pre-arrest bail. The Court held that the respondent was entitled to bail, finding that the Investigating Officer had concluded the respondent did not participate in the occurrence and was present elsewhere at the time. The Court further noted that the respondent, an Advocate, appeared to have been falsely implicated due to mala fide intentions and ulterior motives. The key principle laid down is that where an investigation concludes that an accused did not participate in an occurrence and the prosecution fails to establish a significant role, the accused is entitled to pre-arrest bail, especially when the implication appears motivated by mala fide intent.
- Can pre-arrest bail be cancelled when the Investigating Officer has concluded that the accused did not participate in the occurrence?
- Does the mere naming of an accused in an F.I.R. without an attributed specific role justify the denial of pre-arrest bail?
- Is an accused entitled to bail if the prosecution fails to establish a prima facie case and the implication appears to be based on mala fide motives?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
' MAZHAR HUSSAIN MINHAS, J.--- Falak Sher-petitioner is seeking cancellation of pre-arrest bail allowed to respondent No,2 by learned Additional Sessions judge, Okara vide order dated 6-6-2009 passed in case F.I.R. No,303, dated 27-5-2009 under sections 302/148/ 149, P.P.C. Police Station Chuchak District Okara.
2. According to the prosecution on 27-5-2009 at about 8-30 p.m. Respondent No,2 armed with a .12 bore pump action gun along with his co-accused, all equipped with firearms, attacked the petitioner's brother Abdul Jabbar deceased and nephew Ansar Ali, who were present in Chowk of village. Co-accused Azhar Ali fired a pistol shot hitting Abdul Jabbar on left side of his chest as a result of which he expired there and then. Ansar Ali was also given fist and kick blows during the occurrence. The petitioner was also accompanying his co-accused and he resorted to aerial firing with his gun.
3. Learned counsel for the petitioner contends that respondent No,2 is specifically named in the F.I.R. And act of firing is attributed to him. After the occurrence he decamped from the spot leaving behind his gun which was taken into possession by the police. There was absolutely no mala fide on the part of petitioner/complainant or the police to falsely implicate him in this case. Further contended by learned counsel that respondent No,2 is involved in so many other cases of similar nature and is a desperate and hardened criminal. Lastly contends that the, learned Additional Sessions Judge has not properly appreciated the attending circumstances of this case and has illegally allowed pre-arrest bail to respondent No,2.
3-A. On the other hand, learned counsel for respondent No,2 has vehemently opposed the application.
4. Perusal of record available on the file shows that respondent No,2 is simply named in the F.I.R.
And has not been attributed any significant role in the occurrence. It does not appeal to the reason that he went to the place of occurrence along with his co-accused fully armed but did not fire at the deceased or P.Ws and simply resorted to aerial firing. .12-bore gun is alleged to have been thrown by him at the spot but there is nothing on record to show that it is licensed in his name.
Rather it is being claimed by his nephew Tariq who has moved application for interim custody of gun which has been dismissed. Record further reveals that he has taken plea of alibi during investigation, to the effect that at the relevant time he was present in his house. His defence version has been testified before the Investigating Officer by three witnesses, namely, Riaz Ahmed son of Bashir, Ghulam Farid, Advocate and Nadeem Qayyum son of Khalil Ahmed. Investigating Officer has also concluded that he did not participate in the occurrence and reached the spot after the occurrence was over. As regards the contention regarding his involvement in other cases, so far he has not been convicted in any other criminal case, therefore he cannot be deprived of concession of bail on this ground. Learned counsel for respondent No,2 has submitted photocopy of a civil suit titled Iftikhar Ahmed v. Muhammad Ali and others, and has argued that in view of litigation with father of co-accused Muhammad Usman and Kashif, it cannot be believed that respondent No,2 sided with them in the occurrence. After considering the facts and circumstances of this case, I am of the view that respondent No,2, who happens to be an Advocate by profession, has been falsely implicated with mala fide and some ulterior motive to harass and humiliate him. Therefore, learned Additional Sessions Judge has rightly allowed him pre-arrest bail and has not committed any illegality. Hence, the application having no merits is dismissed.