NASIR and 3 others vs STATE and another
This petition under Section 498, Code of Criminal Procedure 1898, sought pre-arrest bail for four petitioners accused in an FIR involving various hurt and rioting offences under the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to the extraordinary concession of pre-arrest bail, considering the allegations of specific versus joint roles and the presence of mala fide. The Court dismissed the petition for two petitioners (Nasir and Imran) because they were specifically attributed with causing injuries falling under non-bailable sections and failed to demonstrate mala fide on the part of the complainant or police. Conversely, the Court confirmed bail for the remaining two petitioners (Rizwan and Zahid) because no specific role was assigned to them, they were previous non-convicts, and the investigation against them was complete. The judgment reaffirms that pre-arrest bail requires a showing of mala fide regarding the intended arrest, and that questions regarding common intention or vicarious liability are to be determined by the trial court after recording evidence, not at the tentative bail stage.
- Is the concession of pre-arrest bail available to an accused who fails to demonstrate mala fide on the part of the complainant or the local police?
- Can the questions of common intention and vicarious liability be determined at the pre-arrest bail stage?
- Should pre-arrest bail be granted to an accused when no specific role is assigned in the FIR and the investigation is complete?
- Section 498, Code of Criminal Procedure 1898
- Section 337A(i), Pakistan Penal Code 1860
- Section 337A(ii), Pakistan Penal Code 1860
- Section 337F(i), Pakistan Penal Code 1860
- Section 337F(v), Pakistan Penal Code 1860
- Section 337L(2), Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
Through this petition under Section 498, Cr.P.C. Nasir, Imran, Rizwan and Zahid petitioners have sought pre-arrest bail in case FIR No, 259/17, dated 09.06.2017 registered at Police Station Cantt.
Sialkot in respect of offences under Sections 337A(i), 337A(ii), 337F(i), 337F(v), 337L(2), 147, 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, deeper appreciation is not permissible and only tentative assessm ent is required at this stage. It has been noticed by this Court that the case to the extent of Nasir and Imran petitioners is distinguishable from that of Rizwan and Zahid petitioners, so first I would like to discuss the case to the extent of Nasir and Imran petitioners. It has been noticed by this Court that Nasir and Imran petitioners are named in FIR with the allegations that Nasir petitioner gave iron rod blow on left little finger of Aurangzeb, complainant and Imran gave iron rod blow on the head of Muhammad Abbas injured and the injuries attributed to Nasir and Imran petitioners fall under Sections 337F(v) and 337A(ii), PPC. The statements of PWs particularly the statement of injured persons under Section 161, Cr.P.C. are available on record and the same are duly supported by the medico legal certificates of the injured, which prima facie connect respectively petitioners with this occurrence. During investigation, respectively petitioners have been found involved in this case by the Investigating Officer and the recovery of weapons of offence is yet to be effected from them. In a recent judgment reported as 2016 SCM R 2064 in case of "Mukhtar Ahmad versus The State and others", Hon'ble Supreme Court of Pakistan has been pleased to observe that the concession of pre-arrest bail cannot be allowed to an accused unless the Court feels satisfied about seriousness of the accused person's assertion regarding his intended arrest being actuated by mala fide on the part of the ,complainant party or the local police, but in this case, Nasir and Imran petitioners have failed to point out any mala fide of the complainant or the local police for their false implication in the instant case, therefore, they do not deserve the extra ordinary concession of pre-arrest bail. For the foregoing reasons and taking guidance from the case-law reported as "Sarwar Sultan and others versus . The State and another"
(PLD 1994 SC 133), this petition to the extent of Nasir and Imran petitioners has got no force and the same is dismissed. The ad interim pre-arrest bail already granted to Nasir and Imran petitioners is also recalled.
3. As far as the case to the extent of Rizwan and Zahid petitioners is concerned, although they are also named in FIR, yet the fact remains that no specific role has been assigned to them therein and a joint role of giving iron rod blows on the persons of Aurangzeb complainant and Muhammad Abbas injured is assigned to them therein. There are only two non-bailable offences in this case i,e, 337F(v) and 337A(ii), PPC and admittedly the injuries falling under these Sections are not attributed to Rizwan and Zahid petitioners. It is settled law that the questions of sharing common intention and vicarious liability of the petitioners shall be determined by learned trial Court after recording evidence. Admittedly Rizwan and Zahid petitioners are previous non-convict and never involved in any other case. They have already joined the investigation of the case, which as per Investigating Officer 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 within few days.
4. For what has been discussed above, false implication of Rizwan and Zahid petitioners by the complainant with mala fide intention and ulterior motive cannot be ruled out of consideration and they have made out a case for grant of pre-arrest bail, hence, this petition to the extent of Rizwan and Zahid petitioners is allowed and the ad interim pre-arrest bail already granted to them 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.
5. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.