Ihtisham Ali Cheema vs The State and another
This petition for leave to appeal was filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, challenging a Lahore High Court order that denied the petitioner pre-arrest bail in a criminal case registered under Sections 324/337-D/148/149 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to pre-arrest bail given the specific allegations of firearm injury and the findings of the police investigation. The Supreme Court held that the petitioner was entitled to relief, converting the petition into an appeal and confirming the pre-arrest bail. The Court reasoned that the investigation revealed the petitioner was empty-handed and that the firearm injury was actually caused by a co-accused, from whom the weapon was recovered. Furthermore, the Court noted an unexplained 24-hour delay in FIR registration and inconsistencies in the medical evidence. The key principle laid down is that while pre-arrest bail is an extraordinary remedy to be granted sparingly, courts must intervene to prevent injustice when investigation findings cast doubt on the prosecution's case, and the benefit of doubt may be extended at the bail stage to protect the constitutional right to liberty.
- Can the benefit of doubt be extended to an accused at the pre-arrest bail stage?
- Does an investigation report finding an accused empty-handed constitute grounds for granting pre-arrest bail?
- Is an unexplained delay in the registration of an FIR a relevant factor for the grant of pre-arrest bail?
- Article 185(3), Constitution of Islamic Republic of Pakistan 1973
- Section 324, Pakistan Penal Code 1860
- Section 337-D, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
- Article 9, Constitution of Islamic Republic of Pakistan 1973
ORDER
SAYYED M AZAHAR ALI AKBAR NAQVI, J.--- Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 22.06.2021 passed by the learned Single Judge of the Lahore 'High Court. Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 228/2021 dated 22.02.2021 under Sections 324/337-D/148/149 PPC at Police Station Sadar, Gujranwala, in the interest of safe administration of criminal justice.
2. Briefly stated the allegation against the petitioner is that he along with co-accused while armed with firearms assaulted upon the complainant party and the petitioner fired with his pistol, which landed on the right side of the chest of one Abu Hurera, brother of the complainant.
3. Learned counsel for the petitioner contends that the petitioner has been falsely roped in this case against the actual facts and circumstances of this case due to connivance of the complainant with local police. Contends that the petitioner is innocent and has nothing to do with the alleged offence as narrated in the FIR. Contends that the FIR was registered after a delay of 24 hours which shows that it was registered after deliberation and consultation. Contends that during the Police investigation, the petitioner was found empty handed at the place of occurrence and the role of firing at the chest of the injured was assigned to co-accused Zain, who has been arrested and the pistol has been recovered from his possession. Finally contends that the case of the petitioner falls within the ambit'of Section 497(2) Cr.P.C.
4. On the other hand, learned Deputy Prosecutor General supported the impugned order declining bail to the petitioner. He contends that the petitioner has been specifically nominated in the crime report with a specific role of firing at the chest of brother of the complainant, therefore, he does not deserve any leniency by this Court.
5. We have heard learned counsel for the parties at some length and have perused the record with their assistance.
It is an admitted position that the petitioner has assailed the jurisdiction of this Court for the grant of pre-arrest bail, which is extraordinary in nature. The superior courts of this country have repeatedly held that the premium of pre-arrest bail is to be extended sparingly. However, if the facts and circumstances do warrant that the person seeking such relief is falsely implicated and there is likelihood of being injustice committed to him, this Court is under obligation to come for the rescue of innocent person while granting the said extraordinary relief. In the instant case. there is no denial to this fact that the case was registered after /apse of 24 hours whereas the distance between the place of occurrence and the Police Station is hardly four miles on a metal road. The inordinate delay per se in this particular case is to be, evaluated with care and caution. No doubt the petitioner is assigned the role of causing firearm injury on the right side of chest of the brother of the complainant but this aspect has been found false during the course of investigation, which remained unchallenged. During the course of investigation, it was further found that in-fact it was co-accused of the petitioner who fired at the injured and as such he was taken into custody and pistol has been recovered from him. During the course of investigation, it was further found that though the petitioner was present at the place of occurrence but he was empty handed and no overt act is ascribed to him. Apart from this it is an admitted fact that the petitioner was taken to hospital after the lapse of three hours and still fresh blood was oozing from the wound whereas the Glasgow Conscious Scale (GCS) was found to be 15/15. All these aspects when taken into consideration conjointly create doubt in the genuineness of the prosecution case. It is established principle of law that the benefit of doubt can even be extended at bail stage. It is an admitted fact that the parties are resident of the same area, known to each other and the occurrence has taken place in the broad day light. As a consequence of all facts and circumstances, we are of the view that putting the petitioner behind the bars at this stage perhaps would result into undue incarceration prior to establishing the guilt of the petitioner, which is to be avoided because of the reason that the liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973.
6. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order dated 22.06.2021 and confirm the ad interim pre-arrest bail granted to the petitioner by this Court vide order dated 22.09.2021.
Cited by 4 cases
- Dr.Rahim Bux Khokhar vs Province of Sindh and others 2025 SHC HYD 1536
- Mumtaz Hussain Malik vs The State 2023 SHC 419
- Ali Bukhsh and another vs The State 2024 PCRLJ 1305
- Ghulam Qadir vs The State 2022 YLR 2413