MUHAMMAD ASIF alias ASO and anothers vs THE STATE
This petition for pre-arrest bail arose from a criminal case registered under sections 302, 324, 148, and 149 of the Pakistan Penal Code 1860, involving allegations of murder and attempted murder. The petitioners, who had been declared proclaimed offenders, sought pre-arrest bail primarily on the grounds of a compromise reached with the complainant and the heirs of the deceased. The State opposed the application, highlighting the petitioners' four-year abscondence and the gravity of the offense, which falls within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. The Court held that pre-arrest bail is an extraordinary relief that cannot be granted to proclaimed offenders who have failed to explain their long abscondence or demonstrate mala fide in their implication. The Court emphasized that the status of a proclaimed offender deprives the accused of the normal right of audience and that a compromise, the voluntariness of which remains unverified, does not automatically entitle such accused persons to pre-arrest bail, especially when there is a risk of tampering with evidence.
- Can a proclaimed offender be granted pre-arrest bail?
- Does a compromise between the parties automatically entitle an accused to pre-arrest bail?
- Is an accused who has absconded for several years entitled to the extraordinary relief of pre-arrest bail?
- What is the effect of being declared a proclaimed offender on the right of audience for bail?
- Section 498, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' IJAZ AHMAD CHAUDHRY, J.--- Through this petition under section 498, Cr.P.C. Muhammad Asif alias Aso and Amanat Ali alias Mano petitioners seek pre-arrest bail in case F.I.R. No,368, dated 10-9- 2004 registered under sections 302/324/148/149, P.P.C. At Police Station Millat Park, Lahore on the statement of Irshad Ahmad with the allegation that on 16-9-2004 at about 2-30 p.m. The petitioners caused the death of Akhtar, nephew of the complainant with fire-arm weapons. It is further alleged that one Iqra daughter of the complainant also sustained injuries.
2. The motive behind the occurrence was alleged that about 10 years ago Faiz Rasool alias Nanha etc. Had murdered Zahid Masood brother of Akhtar Hussain deceased and Faiz Rasool alias Nanha was sentenced to death. Subsequently, the matter was patched up and Faiz Rasool was released and as a result of the compromise he kept in his mind and due to this reason this incident had taken place.
3. Learned counsel for the petitioners contends that the heirs of the deceased Akhtar Hussain and injured Nazia Akhtar along with the complainant have entered into a compromise with the petitioners, who submitted their affidavits before the learned Additional Sessions Judge to the effect that the petitioners were not the real culprits and in such circumstances it has become a case of no evidence to the extent of the petitioners, who may be allowed pre-arrest bail.
4. Learned counsel for the complainant has also supported the contention of learned counsel for the petitioners. However, the D.P.-G. Opposes this petition on the ground that the petitioners remained fugitive from justice for about four years; that the offence falls within the prohibitory clause of section 497, Cr.P.C. And that the petitioners are not entitled for pre-arrest bail.
5. I have heard the learned counsel for the parties and also perused the record. The incident in the present case had taken place at 2-30 p.m. On 16-9-2004 and the case was registered on the same day at 4-05 p.m. On the statement of Irshad Ahmad. In his statement Irshad Ahmad has specifically mentioned the names of both the petitioners that they while armed with kalashnikov had fired at the deceased, created terror through firing in the Bazar and murdered Akhtar Hussain and injured three persons. Then both the petitioners became fugitive from justice and were declared proclaimed offenders. For the first time they moved application for bail before arrest on 11-10-2008 more than four years after the incident. It has been held by this Court and the august Supreme Court of Pakistan that proclaimed offenders loses the normal right of audience. Bail before arrest is an extra-ordinary relief which cannot be allowed to such type of accused merely on the basis of compromise, the voluntariness of which is yet to be determined and possibility of tampering with the prosecution evidence by the petitioners, who appear to be hardened criminal cannot be ruled out. Moreover, the petitioners fail to point out any mala fide for their false implication or explain the reason for their abscondence. In such circumstances, it is not a fit case for pre-arrest bail and this petition being devoid of any merit is dismissed.