RIASAT ALI vs GHULAM HAIDER, etc
This petition, filed under Section 497(5) of the Code of Criminal Procedure 1898, sought the cancellation of pre-arrest bail granted to five respondents by the Additional Sessions Judge, Lahore, in a case involving charges under Sections 324, 337-F(iii), 337-A(ii), 148, and 149 of the Pakistan Penal Code 1860. The core legal question was whether the lower court erred in confirming the pre-arrest bail of the accused despite specific allegations of firearm injuries and the absence of established mala fide intent. The Court held that while the allegations against Respondents No. 2 to 5 were general and lacked sufficient evidentiary support to warrant bail cancellation, the case against Respondent No. 1 was distinct due to specific allegations of firearm injury corroborated by medical reports. Furthermore, the Court found the lower court’s order regarding Respondent No. 1 legally flawed for failing to address the essential requirement of mala fide or ulterior motive. Consequently, the Court dismissed the petition regarding Respondents No. 2 to 5 but allowed it against Respondent No. 1, recalling his pre-arrest bail. The judgment reaffirms that pre-arrest bail cannot be granted without the court being satisfied of mala fide intent by the complainant or police.
- Is the absence of a finding regarding mala fide or ulterior motive sufficient grounds to recall an order granting pre-arrest bail?
- Can pre-arrest bail be cancelled for an accused specifically nominated in an FIR with corroborated medical evidence of injury?
- Does the lack of specific evidence or medical corroboration for an accused's role justify the refusal to cancel their pre-arrest bail?
- Section 497(5), Code of Criminal Procedure 1898
- Section 324, Pakistan Penal Code 1860
- Section 337-F(iii), Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
Through the instant petition in terms of Section 497(5), Cr.P.C., the petitioner (complainant) has sought recalling of order dated 27.10.2018 passed by the learned Addl. Sessions Judge, Lahore, wherein pre-arrest bail of Respondents No, 1 to 5 was confirmed in case FIR No. 956/2018 dated 16.05.2018 registered u/S. 324/337- F(iii)/337-A(ii)/148/149, PPC at Police Station Kahna, Lahore.
2. Succinctly the prosecution story as narrated in FIR is that the respondents/accused on 15.05.2018 at about 6.50 p.m. assaulted on the complainant. On raising lalkara by Ghulam Rasool Respondent No, 3, Ghulam Haider Respondent No. 1 made a fire shot with the intention to cause death, which hit on right arm of injured Asif Muhammad Riaz Respondent No, 2 made fire shot, which hit on right ear of injured Muzammil Malook, whereas rest of the respondents/accused started aerial firing and managed to flee away from the scene.
3. Arguments heard. Record perused.
4. After hearing the learned counsel for the parties and perusing the record, it transpires that there are general allegations against other respondents except Respondents No. 1 & 2 Ghulam Haider and Muhammad Riaz.
Respondent No. 1 Ghulam Haider is nominated in FIR with specific role that he caused injury with pistol on the left arm of injured Asif, who was medically examined on the same day, wherein doctor observed two fire-arm injuries on his person. Injury No. 1 is at left fore-a rm having inverted margins, whereas Injury No, 2 is the exit wound of the same and these injuries are specifically attributed to Respondent No, 1 in the FIR and said injured Asif while recording his statement u/S. 161, Cr.P.C. also endorsed the stance taken by the complainant while lodging the FIR in which he fully involved Respondent No, 1 in the commission of crime. During the course of investigation, said Respondent No. 1 was also found guilty .
5. As far as injury attributed to Respondent No, 2 Muhammad Riaz is concerned, though he was attributed fire-arm injury on the person of Muzammil Malook injured but according to medical report, no fire-arm injury was observed by the doctor in MLR and during the course of investigation he was found presen t at the scene of crime but with empty handed.
6. For what has been discussed above, this Court finds that no ground for cancellation of bail is made to the extent of Respondents No, 2 to 5, hence, this petition to their extent is hereby dismissed .
7. As far as the case of Respondent No. 1 Ghulam Haider is concerned, as discussed above he is specifically nominated in the FIR with attribution of causing fire-arm injury on the person of injured Asif, which injury is duly reflected in MLC and attracts the provision of Section 337-F(iii), PPC. He has been found involved in the commission of alleged crime coupled with the fact that the learned Addl. Sessions Judge, Lahore, while confirming the ad-interim pre- arrest bail of Respondent No, 1, has not mentioned the basic factor of mala fide or ulterior motive, which is a condition precedent for awarding of pre-arrest bail. Reliance in this regard is placed on the judgment passed by the august Supreme Court of Pakistan in case of "Mukhtar Ahmad v. The State and others"
(2016 SCMR 2064 ), in which it is observed that: "This Court has repeatedly declared that the concession of pre-arrest bail cannot be allowed to an accused person 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 not a word about this crucial aspect of the matter is to be found in the impugned orders passed by the High Court in the present case."
The observation given in the impugned order by the learned Addl. Sessions Judge, is not only arbitrary but also perverse from the facts and circumstance s of the case, so, this petition to the extent of Respondent No, 1 Ghulam Haider is allowed and his pre-arrest bail granting order dated 27.10.2018 passed by the learned Addl. Sessions Judge, Lahore is hereby recalled.