Tanveer Willam vs The State, etc

ORDER

This single order shall dispose of captioned criminal miscellaneous (Crl. Misc. No. 260-B of 2022) as well as Crl. Misc. No.261-B and 262-B of 2022, (pre-arrest bail petitions) as they emanate from same FIR No. 146, dated 13.02.2022, under Sections 324, 148, 149, PPC, Police Station Kohsar, Islamabad.

2. The learned counsel for the petitioners contended that the petitioners are innocent and have been falsely roped in the instant FIR; that the petitioners have no nexus with the commission of alleged offence; that the case of the prosecution is full of dents and doubts and there is no sufficient material on record which connects the petitioners with the commission of alleged offence and that involvement of the petitioners is tainted with malafide on the part of police. Petitioners relied upon case laws (2020 SCMR 971), (2022 PCr.LJ Note 8, Lahore), (Crl. Misc. No. 1385-B of 2021 Islamabad) & (Crl. Misc. No. 1365-B of 2021, Islamabad)

3. On the other hand, learned State counsel assisted by learned counsel for the complainant argued that the petitioners are specifically nominated in the FIR, sufficient material is available on record which, prima facie, connects them with the commission of alleged offence; that recovery of crime weapon is yet to be effected for which custody of the petitioners is warranted and that investigation is at halt and that two FIRs No. 165/2022 & 144/2022 were also registered against the co-accused persons, wherein crime weapon i.e. .30 bore pistol was recovered from co-accused Dilawar Masih. Therefore, petitioners are not entitled to the concession of bail.

Arguments heard, record perused.

4. According to the allegations, set forth in the FIR the complainant along with his brother restrained the petitioners from making ariel firing while celebrating Basant festival, in response, the petitioners resorted indiscriminate firing due to which the brother of complainant sustained injuries.

5. Record further reveals that the subject FIR stood registered on 13.02.2022, petitioners filed first pre- arrest bail petition on 15.02.2022. The same was dismissed in default due to their non appearance vide order dated 22.02.2022. They filed second pre-arrest bail petition on 28.02.2022, which was dismissed by the learned Additional Sessions Judge, Islamabad (West) on the same day. Hence the instant pre- arrest bail petitions, filed on 09.03.2022. It is further an admitted fact of the matter that the petitioners are specifically nominated in the instant FIR and role of firing has been attributed to them and recovery crime weapon is yet to be effected.

6. The petitioners initially absented before the learned trial Court which resulted in dismissal of their bail petition for want of prosecution. Their second pre-arrest bail petition was also dismissed for want of justification qua their absence. The situation remained the same even before this Court as none of the petitioners has advanced explanation qua their non-appearance in pursuit to the first pre-arrest bail petition. Consequently, in absence of any valid and reasonable justification, petitioners cannot ask for exercise of extra ordinary discretionary relief in pre-arrest bail.

7. The Hon'ble Supreme Court of Pakistan in the case of "Shahzaib, etc v. The State" (PLD 2021 SC 886) has been pleased to hold that "in case the petitioner (accused) is not personally present in the Court, the Court is not authorized to grant him bail and the petition is to be dismissed for his lack of presence in the Court."It has also been held that "However, in case some explanation is furnished for his non-appearance the Court, may if it finds that explanation to be satisfactory exempt his presence for that day and adjourn the hearing of the petition for a short period."

The above judgment clarified that "in case the petition is dismissed for non-appearance of the accused in a pre-arrest bail matter under Section 498-A, the petitioner can file a fresh bail petition before the same court provided that he furnishes sufficient explanation for his non-appearance in the earlier bail petition and the court is satisfied with his said explanation. But if he fails to furnish any satisfactory explanation, his second bail petition is liable to be dismissed on account of his conduct of misusing the process of Court disentitling him to the grant of discretionary relief of pre-arrest bail."

8. The Hon'ble Supreme Court of Pakistan clarified the principal in the case of "Azam Saleem and another v. The State & another" (PLD 2021 SC 894) is as under:- "In the end we reiterate, for the sake of clarity, that if a pre-arrest bail petition is dismissed for non-appearance of the petitioner under Section 498-A Cr.P.C, the second pre-arrest bail petition is maintainable only if the petitioner furnished satisfactory explanation for his absence in the first petition. Only if the explanation is found satisfactory can the Court proceed further and decide the second petition on merits. However, if the explanation is found to be unsatisfactory, the second petition is not maintainable and is liable to be dismissed without going into the merits of the case."

9. Consequently, the instant criminal miscellaneous petition as well as Crl. Misc. No. 261-B and 262-B of 2022 are accordingly, dismissed. Ad-interim pre-arrest bail already granted to the petitioners vide order of even date 09.03.2022, is recalled.

Vide consolidated order of even date, passed in Crl. Misc. No. 260-B/2022, titled (Tanveer William v. The State), the instant Crl. Misc. is also dismissed Vide consolidated order of even date, passed in Crl. Misc. No. 260-B/2022, titled (Tanveer William v.

The State), the instant Crl. Misc. is also dismissed