KHURSHID AHMAD vs STATE etc
The petitioner sought pre-arrest bail in a criminal case registered under Sections 302, 109, 148, and 149 of the Pakistan Penal Code 1860 at Police Station Sahuka, District Vehari. The core legal question was whether the petitioner, who was attributed the role of instigation and was abroad performing Umra at the time of the alleged occurrence, was entitled to confirmation of pre-arrest bail. The Lahore High Court held that since the petitioner was abroad at the time of the incident and the possibility of his false involvement due to previous enmity could not be ruled out, a case for further inquiry under Section 497 read with Section 498 of the Code of Criminal Procedure 1898 was made out. The court confirmed the pre-arrest bail subject to furnishing fresh bail bonds. The key principle laid down is that where an accused demonstrates an alibi placing him abroad at the time of the occurrence and shows a plausible ground for mala fide involvement, pre-arrest bail should be confirmed.
- Whether pre-arrest bail can be confirmed when the accused establishes an alibi showing presence abroad at the time of the occurrence?
- Does an allegation of instigation coupled with a plausible claim of mala fide due to previous litigation make out a case for further inquiry under Section 497 of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 498, Code of Criminal Procedure 1898
ORDER
Khurshid Ahmad petitioner seeks pre-arrest bail in case FIR No, 126/2009 dated 21.4.2009 offences under Sections 302/109/148/149 PPC registered at Police Station Sahuka District Vehari.
2. It is, inter-alia contended that role attributed to the petitioner in the FIR is that of instigation to the principal accused for commission of the offence; that at the time of alleged occurrence the petitioner was not even available in Pakistan and he was away to Saudi Arabia for performance of Umra. Further submits that he has handed over copies of passport and visa and proof of his stay in the hotel at holy places of Macca and Madina; that no incriminating material is available on record; that nothing is to be recovered from the petitioner; that no useful purpose would be served for sending him to jail; that complainant has not even himself levelled allegation against the petitioner but some PW alleges that prior to proceeding to abroad he had instigated the principle accused in his presence; that the occurrence has taken place when the petitioner was performing Umra. Further submits that he was witness in the case FIR No, 341/08 registered against the complainant and that the instant case has been registered against the petitioner with mala fide and due to that grudge. In support of his contentions, learned counsel for the petitioner places reliance on 2009 P.Cr.L. 163 Lahore.
3. Conversely, Mr. Altaf Ibrahim Qureshi, Advocate learned counsel for the complainant opposes the above submissions made at bar by learned counsel for the complainant and submits that petitioner is in fact master mind behind the occurrence and with plaining he proceeded abroad after instigating the principal accused.
4. Arguments heard. Record perused.
5. The petitioner admittedly was abroad when the alleged occurrence has taken place. Rather he was at the holy places of Macca and Madina for performing Umra. The only role allegedly attributed to him is that of provoking the accused party for taking revenge. Nothing is to be recovered from him. After hearing the learned counsel for the parties and minutely examining the record I am of the prima facie view that possibility of his false involvement in the case in hand on account of being a witness to the earlier occurrence cannot be ruled out. In view whereof, I am of the considered view that petitioner has made out a case of further inquiry falling within the ambit of Section 497 read with Section 498 Cr.P.C. Therefore, ad-interim pre-arrest bail already granted to the petitioner vide order dated 1.6.2009 passed by this Court is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs,2,00,000/- (two laces) with one surety in the like amount to the satisfaction of learned trial Court.