NOOR MUHAMMAD vs The STATE and another
This matter comes before the Lahore High Court through a petition filed under Section 498 of the Code of Criminal Procedure 1898, whereby the petitioner sought pre-arrest bail in case FIR No. 210/17 registered at Police Station Ahmadpur Sial, District Jhang, concerning offences under Sections 337-A(i), 337-A(iii), 337-F(i), 337-L(2), and 34 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to confirmation of pre-arrest bail given the nature of the injury attributed to him, the question of vicarious liability, and allegations of mala fide implication. The court held that since the specific injury attributed to the petitioner fell under Section 337-A(i) of the Pakistan Penal Code 1860, which is a bailable offence, and given his status as an elderly, previously non-convicted person who had joined the investigation, mala fide implication by spreading the net wide could not be ruled out. The court laid down the principle that tentative assessment at the pre-arrest bail stage applies where a bailable offence is attributed and the question of common intention under Section 34 requires evidence at trial, making custodial interrogation unnecessary, especially when recoveries have lost relevancy.
- Can pre-arrest bail be confirmed when the primary injury attributed to the accused falls under a bailable section of the Pakistan Penal Code?
- Whether the question of sharing common intention and vicarious liability should be determined at the bail stage or by the trial court after recording evidence?
- Does the possibility of mala fide implication by spreading the net wide justify the confirmation of pre-arrest bail for an elderly and previously non-convict petitioner?
- Is custodial interrogation necessary for the sole purpose of effecting a stale recovery after a significant lapse of time?
- Section 498, Code of Criminal Procedure 1898
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-A(iii), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 337-L(2), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
ABDUL SAMI KHAN, J.---Through this petition under section 498, Cr.P.C. the petitioner has sought pre-arrest bail in case FIR No.210/17, dated 25.06.2017 registered at Police Station Ahmadpur Sial, District Jhang in respect of offences under sections 337A(i), 337-A(iii), 337-F(i), 337-L(2), 34, 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, therefore, without going into deeper appreciation of evidence, it is noticed that although petitioner is named in FIR, yet the fact remains that only the allegation of raising "Ialkara" and causing "sota" blow on right said of forehead of Muhammad Hanif injured is leveled against him and admittedly the injury attributed to the petitioner has been declared by the doctor as Shajjah-i-Khafifa falling under section 337-A(i), P.P.C., which is bailable offences. Apart from the above, no role whatsoever has been assigned to the petitioner in the commission of alleged offence. Accordingto the narrations of FIR, the injury falling under section 337-A(iii), P.P.C. is specifically attributed to co- accused Asif. It is settled law that the questions of sharing common intention and vicarious liability of the petitioner shall be determined by learned trial court after recording evidence. The petitioner is an old man and is real father of co-accused Asif and Muhammad Ishaque, therefore, possibility cannot be ruled out of consideration that the complainant has implicated the present petitioner in this case with mala fide intention and ulterior motive by spreading the net wide. Admittedly the petitioner is previous non-convict. The person of the petitioner cannot be handed over to the 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 29.05.2017. In such situation, recovery of weapon of offence i.e. "sota" after the lapse of six months is of little help to the prosecution. In this regard, reliance can be placed on 2014 SCM R 1349. The petitioner has already joined the investigation which is complete to his extent, therefore, no useful purpose would be served by sending him behind the bars so as to enable him to come out of jail on post-arrest bail after few days.
3. For what has been discussed above, false application of the petitioner 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 petitioner is confirmed subject to furnishing bail bonds in the sum of Rs. 50,000/- (Rupees fifty thousand only) with one surety in the like amount to the satisfication 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.
Cited by 2 cases
- Tufail Ahmad vs The State and another 2021 IHC 340, 2022 YLR 1035
- Umer Bilal vs The State and another 2022 PCRLJ 1373