MUHAMMAD MOOSA and others vs THE STATE
This criminal petition for leave to appeal, converted into an appeal and allowed by the Supreme Court of Pakistan, challenges the High Court's order refusing pre-arrest bail to the petitioners. The core legal question concerns the entitlement of the accused to pre-arrest bail when co-accused have already been granted bail and the testimonies of the complainant and injured witnesses fail to support the prosecution story regarding the petitioners' involvement. The Supreme Court held that where the depositions of material witnesses do not implicate the petitioners, the possibility of mala fide involvement cannot be ruled out, warranting the confirmation of pre-arrest bail. The key principle laid down is that the non-support of the prosecution case by injured and complainant witnesses during trial proceedings heavily tilts the case in favor of confirming pre-arrest bail on grounds of potential mala fide involvement.
- Whether pre-arrest bail should be confirmed when the complainant and injured witnesses do not support the prosecution story?
- Does the grant of bail to co-accused support the case for pre-arrest bail of remaining petitioners?
- Can the possibility of mala fide involvement justify the confirmation of interim pre-arrest bail?
ORDER
' ANWAR ZAHEER JAMALI, J.---This criminal petition for leave to appeal, challenges the order dated 16-3-2011, refusing to grant pre-arrest bail to the present petitioners.
2. By this Court, however, petitioners were admitted to interim pre-arrest bail vide order dated 28- 4-2011. On 7-6-2011 it was brought to our notice that evidence of complainant in Crime No,4 of 2009, Police Station Tando Bago, District Badin and three injured witnesses in the said crime has been recorded, whereupon, learned Advocate Supreme Court for the petitioners was directed to produce certified true copies of all such depositions. As per further order, notice of this criminal petition was also issued to complainant Muhammad Rahim son of Dharhoon, which was accordingly issued by the office, but he has not turned up.
3. It is an admitted position from the record that all the other accused nominated in the crime, except the present petitioners have been admitted to pre-arrest/post-arrest bail either by the trial Court or by the High Court. Perusal of certified copies of depositions of complainant and three injured witnesses reveals that none of them has supported the prosecution story about the involvement of petitioners in the commission of crime. This being the position, possibility of mala fide involvement of present petitioners in the commission of crime cannot be ruled out.
4. Accordingly, this petition is converted into appeal and allowed. Consequently, interim pre-arrest bail granted to the petitioners, vide order dated 28-4-2011, is confirmed in the same terms as recorded in the said earlier order.