Murtaza Versus State

Order

Muhammad Aamir Nawaz Rana, j. --- The applicant has sought post-arrest bail as he is arrested in pursuance of FIR No.83/2022 which was lodged at PS Quaid Abad District Quetta on 19.05.2022 by Syed Akhtar Hussain (complainant) under section 324, P.P.C.

2. The backdrop of this post-arrest bail application is: the applicant had initially obtained pre-arrest bail from the Court of learned Additional Sessions Judge-X, Quetta ("trial Court") which was confirmed vide order dated 02.06.2022. The complainant had assailed the said order before this Court by filing Criminal Bail Cancellation Application No.286/2022 which was allowed vide order dated 15.08.2022 and bail granted to the applicant was recalled. Thereafter, the applicant was arrested and after investigation he was remanded to judicial custody but till date no progress has been made in the trial as not a single witness has yet been examined by the trial Court. Meanwhile, the applicant filed post-arrest bail application before the trial Court which was dismissed vide order dated 08.09.2022 ("impugned order"), hence this application.

3. Facts necessary for consideration are that on 19.05.2022, the complainant reported that he was going to drop his friend Ali Akbar at Alamdar Road Quetta when at about 03:00 pm, the accused/applicant stopped him and started scuffling with him. The people intervened and got him freed. The accused/applicant then ran towards his car and brought pistol and fired at him. The bullet hit his left leg due to which he fell down. According to complainant, people present at the spot shifted him to hospital. Consequently, the aforesaid FIR was lodged against the accused/applicant. After investigation, report under section 173, Cr.P.C was submitted against the accused/applicant and the case is pending trial, as mentioned above.

4. Mr. Iftikhar Ahmed Langove, learned counsel appearing on behalf of the applicant contended that the applicant, after his arrest, has undergone extensive investigation but nothing has been recovered from him which could connect him with the commission of alleged offence; since, allegedly role of causing only one firearm injury has been attributed to the applicant, therefore intention to murder is missing in this case and section 324, P.P.C. is not attracted. Learned counsel further submitted that in view of non-obstante clause provided under section 337-N(2), P.P.C., punishment of Tazir is not attracted in the facts and circumstances of the case, therefore the incarceration of applicant is without any legal justification and against the relevant provisions of Pakistan Penal Code. While concluding his arguments, learned counsel emphasized that considering the facts and circumstances mentioned in the FIR, intention to kill the complainant is missing, and this question can only be decided by the trial Court; after considering the evidence after complete trial, therefore a case of further inquiry within the ambit of section 497 (2), Cr.P.C is made out in favour of the applicant. Learned counsel relied upon the cases titled as Muhammad Faisal v. The State 1 , Akhtar Ullah v. The State 2 , Mukaram v. The State 3 , Jahanzeb v. The State 4 , Muhammad Idress v. The State 5 , Muhammad Idress v. The State 6 , Azmat Khan alias Jalil v. The State 7 , Zahid alias Zahdi v. The State 8 and Shahid Raziq alias Shahid v. The State 9 .

Conversely, Mr. Muhammad Akram Shah, learned counsel appearing on behalf of the complainant strongly opposed the request of the applicant for grant of post-arrest bail and contended that sufficient material is available on record in the shape of medical and oral evidence which proves that the applicant with the intention to kill the complainant had fired at him. Learned counsel further stated that since the offence committed, falls within the prohibitory clause of section 497, Cr.P.C, therefore, the applicant is not entitled for grant of post-arrest bail. While concluding his arguments, learned counsel submitted that this Court has already cancelled pre-arrest bail granted to the applicant by the trial Court, so in such view of the matter, there is no new ground available, therefore the application merits dismissal. Learned counsel relied upon the cases titled as Sheqab Muhammad v. State 10 , Mir Hassan v. State 11 , Jumman alias Jummoo v. The State 12 and Liaqat Ali v. The State 13 .

Ms. Robina Taseen, learned State Counsel appearing on behalf of the State also adopted the arguments of learned counsel for the complainant and opposed the request of applicant for grant of post-arrest bail.

Arguments heard and with the able assistance of learned counsel for the parties, record was perused.

5. There is no cavil to the proposition that in criminal cases each case has to be examined, analyzed and assessed on its own facts and attending circumstances, therefore no stringent rule can be observed while exercising the jurisdiction in criminal cases particularly vis- -vis bail matters. Grant of bail is a discretionary relief, however, it is of paramount importance that exercise of discretion is structured upon recognized judicial principles of criminal jurisprudence. The tentative assessment of available material is required at bail stage but the merits of the case can also be touched 14 and if any doubt is observed, the benefit of doubt 15 can be extended to accused even at bail stage.

6. The pre-arrest bail granted to the applicant by the trial Court was recalled by this Court vide order dated 15.08.2022 considering the request of the State Counsel that the investigation had not been completed and the applicant is required for the purpose of investigation; in such view of the matter, while distinguishing the grounds of pre-arrest bail and post-arrest bail, the pre-arrest bail granted to the applicant was recalled and reliance in this regard was placed in the case of Muhammad Ismail v. The State 16 , the relevant excerpt is reproduced:

"-----It goes without saying that an accused of a cognizable offence scheduled as non-bailable can only claim protection of anticipatory bail by reasonably demonstrating his intended arrest being contemplated by considerations mala fide and sinister, designed to abuse process of law. It is a judicial protection rooted into equity; whereas an accused in custody after completion of investigation can be released on bail on the touchstone of consideration statutorily enumerated in subsection (2) of section 497 of the Code of Criminal Procedure, 1898, these two have no parallels".

(Emphasis provided)

In order to get the investigation completed, the pre-arrest bail granted to the applicant was recalled. The applicant, as mentioned above, was arrested and interrogated and now for approximately more than one month he is behind the bars. The trial has not yet been commenced. It has been informed by learned counsel for the complainant that the injured/complainant is at Karachi and still under treatment, so there is likelihood of protraction of the trial and the incarceration of applicant would not serve any purpose. Reliance in this regard is being placed upon the case titled as Saeed Yousaf v. The State 17 .

7. Prima facie, allegedly one shot was fired at complainant that too at non-vital part. Tentative assessment of the material available on record transpires that ingredient, necessary for murderous attempt on the part of the applicant require further probe. Though pointing out the pistol and pressing the trigger manifests the intention but under what circumstances that act was committed that too would require careful analysis by the trial Court, as to whether, it was an intentional act or just at the spur of the moment an unscrupulous and asinine sudden reaction to any abusive and derogatory language; that aspect too require further inquiry.

8. The learned trial Court while dismissing the post-arrest bail of the applicant has not considered the attending circumstances of the case and used such language which amounts to final verdict against the applicant, time-honored principle, in this regard, has always been that in order to secure the ends of justice the Courts at bail stage should always resort to tentative assessment, otherwise trial would become exercise in futility.

In view of the above, the impugned order dated 08.09.2022 passed by learned Additional Sessions Judge-X, Quetta is set aside and the applicant is admitted to post-arrest bail subject to furnishing solvent surety in the sum of Rs.200,000/- (Rupees two hundred thousand only) and PR bond of the like amount to the satisfaction of Additional Registrar of this Court.

The observations made hereinabove are purely tentative in nature and same shall not affect merits of the case pending trial, which has to be decided on its own merits.

MQ/52/Bal. Bail granted.