MUHAMMAD MUBASHAR and 3 others vs The STATE and another
This petition was filed under Section 498 of the Code of Criminal Procedure 1898 seeking pre-arrest bail in a case involving offences under Sections 337A(ii), 337F(i), 337L(2), 148, and 149 of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to pre-arrest bail given the circumstances of the case and the nature of the allegations. The Court held that the petitioners were entitled to confirmation of their pre-arrest bail. The Court observed an unexplained eighteen-day delay in the FIR registration, suggesting deliberation and consultation. Furthermore, the Court noted that the medical evidence did not support the specific allegations against certain petitioners, and investigation findings contradicted the role assigned to another. Crucially, the Court applied Section 337N(2) of the Pakistan Penal Code 1860, noting that the petitioners were not previous convicts or hardened criminals, nor was the offence committed for honour. The Court concluded that the prosecution's need for recovery was irrelevant due to the significant lapse of time and that the petitioners had already joined the investigation, rendering incarceration unnecessary.
- Does an unexplained delay in the registration of an FIR suggest mala fide intention on the part of the complainant?
- Can the recovery of weapons be a valid ground for denying pre-arrest bail when a significant amount of time has elapsed since the occurrence?
- Under what circumstances can the additional punishment of ta'zir be awarded in cases of hurt under the Pakistan Penal Code 1860?
- Section 498, Code of Criminal Procedure 1898
- Section 337A(ii), Pakistan Penal Code 1860
- Section 337F(i), Pakistan Penal Code 1860
- Section 337L(2), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 337N(2), Pakistan Penal Code 1860
ORDER
ABDUL SAMI KHAN, J.---Through this petition under section 498 Cr.P.C. the petitioners have sought pre-arrest bail in case FIR No,199/16, dated 02.06.2016 registered at Police Station Kanganpur, District Kasur in respect of offences under sections 337A(ii), 337F(i), 337L(2), 148, 149, P.P.C.
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 only tentative assessment is required at this stage. It has been noticed by this Court that there is an unexplained delay of eighteen days in registration of FIR, which prima facie reflects that the FIR has been got registered after due deliberation and consultation. As far as Naveed Ahmad and Ijaz Ali alias Sony petitioners are concerned, no specific role is assigned to them, whereas the allegation of giving sota blow by Muhammad Iftikhar petitioner on the head of Nazir Ahmad complainant is not supported by medical evidence as admittedly Nazir Ahmad complainant has not got himself medically examined after the alleged incident. Although Muhammad Mubashar petitioner has been assigned the role of causing injury on the head of Sughran Bibi injured, yet the fact remains that during the course of investigation he was found merely present at the spot and he did not cause any injury to Sughran Bibi injured. Even otherwise, it is an admitted position of the case that the petitioners are previous non-convict; neither they are hardened, dangerous, desperate criminals nor they have committed the alleged offence on the pretext of honour, therefore, section 337N(2), P.P.C. 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 for 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 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 elements are missing in this case. 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 15.06.2016. In such situation, recovery of weapons of offence after the lapse of more than one year and two months is of little help to the prosecution. In this regard, reliance can be placed on 2014 SCM R 1349. The petitioners have already joined the investigation, which is complete to their extent, 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 above, false implication of the petitioners by the complainant with mala fide intention and ulterior motive cannot be ruled out of consideration, hence, this petition is allowed and the ad interim pre-arrest bail already granted to the petitioners vide this Court's order dated 21.07.2017 is hereby confirmed subject to furnishing bail bonds in the sum of Rs,100,000/- (Rupees one hundred thousand only) each with one surety in the like amount to the satisfaction of learned trial court.
4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.
Cited by 1 case
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