Yasir Arfat, Etc. vs The State, Etc.
This criminal matter arises from a petition for pre-arrest bail filed by Yasir Arfat and Faisal against whom a case was registered under Sections 376/511 of the Pakistan Penal Code 1860 for an alleged attempt to commit Zina-bin-Jabr. The core legal question concerns whether pre-arrest bail should be confirmed when the investigating agency during partway investigation deletes the original non-bailable offences and recommends trial under bailable Section 354 of the Pakistan Penal Code 1860, and when nothing remains to be recovered from the accused who have already joined the investigation. The Lahore High Court held that since the offense found during investigation is bailable, no recoveries are pending, and the petitioners have joined the investigation, sending them to jail would serve no useful purpose, particularly given the constitutional protection afforded to the life and liberty of a subject. The court confirmed the pre-arrest bail, establishing the principle that tentative assessment of investigation favoring bailable offences combined with cooperation in the investigation warrants confirmation of pre-arrest bail.
- Whether pre-arrest bail can be confirmed when investigating agency alters offences to bailable ones during investigation?
- Is an accused entitled to pre-arrest bail when nothing remains to be recovered and they have joined the investigation?
- Section 376, Pakistan Penal Code 1860
- Section 511, Pakistan Penal Code 1860
- Section 354, Pakistan Penal Code 1860
- Section 354-A, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
ORDER MAZHAR IQBAL SIDHU, J. - After having been back-fired by the learned lower Court, petitioners Yasir Arfat and Faisal have knocked portal of this Court seeking pre-arrest bail in a case registered against them vide F.I.R. No. 991/12, dated 29.11.2012 under Sections 376/511, P.P.C, at P.S. Bhikhi, Sheikhupura on the written complaint of Mst. Naazia Bibi with the allegations that petitioners on gun point attempted to commit Zina-bin-Jabr with her on 24.11.2012 at about PM in the area of village Ghulla Wattuwan.
2. Learned counsel for the petitioners has mainly argued that partway investigation offences under Sections 376/511, P.P.C, have been deleted and now investigating agency has recommended case to be tried under Section 354, P.P.C, and the same is bailable and being so petitioners are entitled for extraordinary relief of pre-arrest bail and has also relied upon in case titled Muhammad Shafique and another v. The State 2010 YLR 1784).
3. Learned DPG assisted by learned counsel for complainant has deftly as well as phlegmatically opposed the submissions and submitted that police cannot be taken as arbiter in the decision of the case, it is for the Court to see the material available on the record against the petitioners and has diverted attention of the Court towards the text of the F.I.R, and has argued further that besides offences mentioned in the F.I.R., prima facie offence under Section 354-A , P.P.C, is also constituted therefrom; police has no authority to delete or and , any particular provisions of P.P.C, except at the time of final scrutiny of the report prepared under Section 173, Cr.P.C, by the District Public Prosecutor and at this stage, ex-facie, deletion of offences and addition of offence under Section 354, P.P.C, is absolutely an erroneous act on the part of the investigating officer and has craved for dismissal of pre-arrest bail.
4. Learned counsel for complainant has Supplemented the arguments of learned DPG and has relied upon 1990 M LD 204, 20l 1 MLD 144 and 2010 P.Cr.L.J. 1431.
2. Arguments heard. Record perused.
3. Case originally was registered under Sections 376/511, P.P.C, as according to the prosecution's on case, act of penetration was not perpetuated. Partway investigation, incident as alleged has not been found committed and perhaps because of the same, effective under Section 354, P.P.C, to the extent of outgoing the modesty of the victim has been found, therefore, said penal provision was added to the case by editing the original offences. It is indubitable that offence under Section 354, P.P.C, is bailable. Nothing is required to be recovered from the petitioners. They have already joined investigation and to send them behind the bars would just be Ali exercise to get them a round of jail. Life and liberty of a subject under the Constitution of the homeland has been protected and. Is secret one and mere on the whim of any party, nobody can be immured to jail.
4. Under these circumstances, instant petition is allowed. Resultantly, pre-arrest bail already granted to the petitioners is confirmed provided their furnishing fresh bail bonds in the sum of Rs.
1,00,000/- (one lac) each with one surety each in the like amount to the satisfaction of learned Ilaqa/duty Magistrate of P.S. Concerned within 30 days commencing from today.
However, it is markedly mentioned that observations handed down by this Court herein-above are tentative in nature and cannot be taken as conclusive.