Muhammad Saeed vs The State thr. A.G. Islamabad and another
This petition for leave to appeal was filed by the petitioner-complainant against an order of the Islamabad High Court granting pre-arrest bail to the respondent-accused in a case involving charges under Sections 324 and 337-F(ii) of the Pakistan Penal Code 1860, and Section 13(d) of the Arms Ordinance. The complainant argued that a child was injured, intent was evident, the High Court ignored essential requirements including complainant mala fides, and the petition was incompetent following dismissal by the Sessions Court. The Supreme Court dismissed the petition, refusing leave to appeal. The Court held that the High Court rightly noted the absence of crime empties, the prior recovery of the alleged weapon, and that the cross-version brought the case within further inquiry. The Court affirmed that mala fide need not always be established by direct evidence but can be inferred from circumstances, and the dismissal or non-competency of a prior bail petition before a lower court does not bar an independent evaluation and grant of pre-arrest bail by the High Court.
- Does the dismissal of a pre-arrest bail petition by a Sessions Court preclude an accused from seeking pre-arrest bail before the High Court?
- Can mala fide for the purpose of granting pre-arrest bail be inferred from the facts and circumstances of a case rather than proved by direct evidence?
- Does a High Court err in granting pre-arrest bail where no crime empty is recovered and the case requires further inquiry based on a cross-version?
- Section 324, Pakistan Penal Code 1860
- Section 337-F(ii), Pakistan Penal Code 1860
- Section 13(d), Arms Ordinance
ORDER
Yahya Afridi, CJ: The petitioner-complainant seeks leave to appeal against the order of the Islamabad High Court dated 20.05.2024 ("impugned order"), whereby pre-arrest bail was granted to the respondent-accused in case FIR No. 308, dated 28.03.2024, registered at Police Station Sangjani, Islamabad, for the offences under Sections 324 and 337-F(ii) of the Pakistan Penal Code, read with Section 13(d) of the Arms Ordinance.
2. According to the FIR, the occurrence allegedly took place on 27.03.2024 at about 8:45 p.m. when Hasham Saeed and Shahzad Saeed, sons of the petitioner-complainant, were on their way home.
They were intercepted by the respondent-accused, who was armed with a pistol. The respondent- accused allegedly hurled abuses at them and, with the intention to kill, fired at them. One of the shots struck Hasham Saeed on his left leg, causing him to sustain an injury.
3. The learned counsel for the petitioner complainant contends that a nine years old child has been injured and his rights have not been properly considered in the impugned order. He further argues that the fact that the respondent-accused was armed with a weapon at the time of the occurrence shows his intent to commit the crime. Additionally, he submits that the impugned order has not taken into account the essential requirements for the grant of pre-arrest bail, in particular the element of mala fide on the part of the complainant party. He also maintains that since the pre-arrest bail petition of the respondent-accused was dismissed for non-prosecution and his second pre-arrest bail petition was held not competent by the Sessions Court, the High Court ought not to have entertained the bail petition of the respondent-accused.
4. After hearing the learned counsel for the petitioner-complainant and the learned Deputy Prosecutor-General, Islamabad and going through the record, we observe that the High Court took note of the absence of any crime empty recovered from the place of occurrence. The High Court also observed that there was no dispute regarding the fact that nothing remained to be recovered from the respondent-accused, as the weapon allegedly used in the commission of the offence had already been taken into possession by the police during the investigation. Further, the High Court observed that a tentative assessme nt of the incriminating material, when considered alongside the stance of the respondent-accused narrated in the cross-version, prima facie indicated that the case fell within the ambit of further inquiry. We find this observation to be in accordance with the weight of the material available on record and not contrary to it. The prosecution has at this stage failed to present sufficient incriminating material to connect the respondent-accused with the commission of the alleged offence.
5. As regards the contention that mala fide was not properly considered, it is important to note that mala fide cannot always be proved through direct evidence and is often to be inferred from the facts and circumstances of the case.[1] Since the High Court found no reasonable grounds to justify the arrest of the respondent-accused and no sufficient incriminating material to connect him to the offence, the grant of pre-arrest bail was justified in the facts and circumstances of the case.
6. The argument that the High Court ought not to have entertained the bail petition after the Sessions Court found the second bail petition to be not competent is misconceived, as it neither precluded the respondent-accused from filing a fresh bail petition before a higher forum nor barred the High Court from independently assessing the case and granting relief where warranted.
7. The learned counsel for the petitioner complainant has not been able to show that the impugned order is either perverse or against any settled principle of the law of bail, warranting interference by this Court. The petition for leave to appeal is found meritless; the same is therefore dismissed and leave to appeal declined.
1. Shahzada Qaiser Arfat v State PLD 2021 SC 708.