Haq Nawaz and 2 others vs The State and another
This criminal miscellaneous petition under Section 498 of the Code of Criminal Procedure 1898 seeks pre-arrest bail in respect of offences under Sections 337F(v), 148, and 149 of the Pakistan Penal Code 1860. The core legal question concerns whether the petitioners are entitled to confirmation of pre-arrest bail given the unexplained delay in lodging the FIR, the nature of the specific roles attributed to them, and the applicability of Section 337N(2) of the Pakistan Penal Code 1860. The Lahore High Court held that the unexplained fifteen-day delay in registering the FIR prima facie indicates deliberation and consultation, and noted that the petitioners are previous non-convicts, not hardened criminals, and did not commit the offence on the pretext of honour. The Court confirmed the pre-arrest bail, laying down the principles that vicarious liability is to be determined at trial after evidence, that recovery loses significance after a long passage of time, and that an accused who has joined the investigation should not be sent to jail when false implication cannot be ruled out.
- Whether an unexplained delay of fifteen days in the registration of an FIR creates a prima facie case of deliberation and consultation for the purpose of pre-arrest bail?
- Does Section 337N(2) of the Pakistan Penal Code 1860 preclude the imposition of ta'zir imprisonment on an offender who is a previous non-convict and has not committed the crime on the pretext of honour?
- Can an accused person be denied pre-arrest bail solely for the purpose of effecting recoveries when the occurrence took place months prior and the accused has already joined the investigation?
- Section 498, Code of Criminal Procedure 1898
- Section 337F(v), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 337N(2), Pakistan Penal Code 1860
Through this petition under Section 498 Cr.P.C. the petitioners have sought pre-arrest bail in case FIR No.405/15, dated 29.07.2015 registered at Police Station Sadar Tandlianwala, District Faisalabad in respect of offences under Sections 337F(v), 148, 149 PPC.
2. I have heard the learned counsel for the parties and have gone through the record with their able assistance. This is bail before arrest and deeper appreciation is not allowed at this stage. It has been noticed by this Court that although the petitioners are named in FIR, yet the fact remains that there is a delay of fifteen days in registration of FIR, which has not been explained by the complainant, which prima facie shows that the FIR has been got recorded after due deliberation and consultation. No role whatsoever in the commission of alleged occurrence has been assigned to Muhammad Hamesh petitioner at Sr. No.3, whereas Haq Nawaz petitioner No.1 has been assigned the role of raising "lalkara" and ineffective firing at Abdul Hameed injured. The only injury sustained by Abdul Hameed injured during the occurrence is attributed to Farooq petitioner falls under sections 337F(v) PPC and carries maximum imprisonment for five years. Even otherwise, it is an admitted position of the case that the petitioners are previous non-convict and never involved in any other case of such like nature; neither they are hardened, dangerous, desperate criminals nor they have committed the alleged offence on the pretext of honour , therefore, section 337N(2) PPC also comes to their rescue, which is reproduced as under:- 337-N. Cases in which qisas for hurt shall not be enforced: (2) Notwithstanding anything contained in this Chapter , in all cases of hurt, the Court may, having regard to the kind of hurt caused by him, in addition to payment of arsh, award ta'zir to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal [or the offence has been committed by him in the name or on the pretext of honour] Provided that the ta'zir shall not be less than one-third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour .
The above quoted provision of law clearly depicts that additional punishment of imprisonment as ta'zir can only be awarded to a person, who is previous convict or hardened, dangerous, desperate criminal or he has committed the offence on the pretext of honour , but all these facts are missing in this case. It is settled law that vicarious liability of the petitioners in the commission of alleged occurrence shall be determined by the learned trial Court after recording evidence. The person of the petitioners cannot be handed over to police only for the purpose of effecting recovery , which otherwise has lost relevancy with the passage of time as occurrence in this case took place on 14.07.2015. In such situation, recovery of weapons of offence after the elapse of three months and twenty one days is of little help to the prosecution. In this regard, reliance can be placed on 2014 SCMR 1349 . The petitioners have already joined the investigation, which is complete to their exten t, therefore, no useful purpose would be served by sending them behind the bars so as to enable them to come out of jail on post arrest bail after few days.
3. For what has been discussed abov e, false implication of the petitioners by the complainant with ulterior motive and malafide intention cannot be ruled out of consideration, therefore, the ad interim pre-arrest bail already granted to them is confirmed subject to furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty thousand only) each with one surety in the like amount to the satisfaction of the learned trial court.
4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.