MUKHTAR HUSSAIN vs STATE & 2 others
This matter comes before the Lahore High Court via a criminal petition filed under Section 497(5) of the Code of Criminal Procedure 1898 by the complainant, Mukhtar Hussain, seeking the cancellation of pre-arrest bail granted to respondents No. 2 and 3 by the Additional Sessions Judge in relation to an F.I.R. registered under Sections 337-A(i), 337-F(i), 337-F(v)/34 of the Pakistan Penal Code 1860. The core legal question concerns whether grounds exist for interfering with a pre-arrest bail granting order under Section 497(5) Cr.P.C. The court held that to interfere with a bail-granting order, the order must be arbitrary, absurd, or fanciful, and that the discretion under Section 497(5) is pari materia with principles governing the setting aside of acquittal orders. Finding no illegality, absurdity, or misuse of concession, and noting that one respondent was declared innocent during investigation and discrepancies existed between the F.I.R. and medical evidence, the court dismissed the petition, establishing that interference with pre-arrest bail requires demonstrating clear perversity or arbitrariness in the lower court's reasoning.
- Whether bail once granted can be cancelled without establishing that the granting order is arbitrary, absurd, or fanciful?
- Does the declaration of innocence during police investigation furnish a ground for sustaining pre-arrest bail?
- Are principles applicable to setting aside acquittal orders pari materia with the discretion to cancel bail under Section 497(5) of the Code of Criminal Procedure 1898?
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 337-F(v), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497(5), Code of Criminal Procedure 1898
ORDER
Mukhtar Hussain son of Taj Muhammad, who is complainant in case F.I.R. No, 151, dated 23.4.2008, registered with Police Station Tulamba, district Khanewal, for offences under Sections 337 A(i), 337- F(i), 337-F(v)/34 P.P.C., by filing this petition under Section 497(5) Cr.P.C. seeks cancellation of pre- arrest bail allowed to Ijaz and Shahbaz sons of Muhammad Aslam (Respondents No, 2 & 3), by the learned Additional Sessions Judge, Mianchannu vide order dated 19.5.2008.
2. Briefly the allegation against Respondents No, 2 and 3, according to the F.I.R., was that they while armed with a dagger and an iron punch assaulted Taj Muhammad, father of the complainant; Ijaz delivered him a dagger blow on his right leg, whereas Shahbaz inflicted him an iron punch blow on his nose and their unknown accused caused him Sota blows, which landed on his right arm and wrist.
3. The learned counsel for the petitioner argues that the respondents are nominated in the F.I.R. with specific roles of causing injuries to Taj Muhammad; that as the contents of the F.I.R. are corroborated by medical evidence, therefore, the respondents are not entitled to extra-ordinary concession of pre-arrest bail and that the order dated 19.5.2008 passed by the learned Additional Sessions Judge is perverse.
4. The learned counsel for Respondents No 2 and 3 as well as the learned Law Officer appearing on behalf of the State supports the order of the learned Additional Sessions Judge by contending that there is contradiction in the contents of the F.I.R. and the medical evidence inasmuch as Injury No, 2 on the left leg below the knee does not find mention in the F.I.R. and that Ijaz respondent was declared innocent during investigation vide Zimni No, 5, dated 12.5.2008.
5. After hearing the learned counsel for the parties and going through the impugned order, it has been observed that although the respondents were nominated in the F.I.R., but admittedly Ijaz to whom injury on the right leg of the injured PW has been attributed has been found to be innocent during the course of investigation. Injury No, 2 on the left leg below the knee does not find mention in the F.I.R. and similar was the position of Injury No,
3. Challan has been submitted before the Court 20.5.2008 and since granting of bail, there was no complaint against the respondents for misusing the said concession. Even otherwise, true import of the allegations against the respondents will be determined at the time of trial after recording of some material evidence. The perusal of the impugned order reveals that the learned Additional Sessions Judge has given elaborate reasons for allowing bail to the respondents. For, a bail granting order to be eligible to be interfered with under Section 497 (5) Cr.P.C., the same has to be arbitrary, absurd or fanciful. The discretion left in the Court under Section 497(5) Cr.P.C. is pari materia with the principles, which apply to the setting aside of the orders of acquittal. Reference may be made to the cases of Mian Dad v. The State and another (1992 SCM R. 1286) and Muhammad Tayyab v. The State (1997 P.Cr.L.J. 597). The learned counsel for 'the petitioner has not been able to point out any such illegality or absurdity in the impugned order so as to warrant interference by this Court.
6. Resultantly. there being no merit in this petition, the same is dismissed.