Ali Gul Versus State
This application for pre-arrest bail arose from a criminal case registered against the applicants under Sections 457, 354, 337-A(i), 384, and 34 of the Pakistan Penal Code 1860, read with Section 7 of the Anti-Terrorism Act 1997. The core legal questions were whether pre-arrest bail could be confirmed where the complainant and victim had exonerated the accused via affidavits, and whether the merits of the case could be examined during bail proceedings. The High Court confirmed the interim pre-arrest bail, holding that the merits of a case can be touched upon during pre-arrest bail hearings as established by Supreme Court precedent. The Court noted that the investigating officer had recommended disposing of the case under 'C' class, and the victim's exoneration of the accused created sufficient grounds for further inquiry. Additionally, the Court directed the trial court to determine the crucial issue of jurisdiction under the Anti-Terrorism Act 1997 prior to conducting the trial.
- Can the merits of a criminal case be touched upon by the court while deciding an application for pre-arrest bail?
- What is the effect of a complainant and victim submitting affidavits exonerating the accused on an application for pre-arrest bail?
- Should a trial court determine the issue of its jurisdiction under the Anti-Terrorism Act 1997 before proceeding with a trial?
- Section 457, Pakistan Penal Code 1860
- Section 354, Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 384, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 7, Anti-Terrorism Act 1997
Order
Naimatullah Phulpoto, ACJ .- --Applicants/accused Ali Gul, Asif, Nasrullah, Ghulam Ali and Zulfiqar Ali seek pre-arrest bail in Crime No. 189/2023 for offences punishable under Sections 457, 354, 337-A(i), 384, 34 P.P.C read with Section 7 of ATA 1997 registered at PS Kalri, Karachi. It appears that after usual investigation, I.O recommended disposal of the case under 'C' class. However, cognizance was taken by learned Judge, Administrative Judge, ATCs Karachi. Prior to this applicants/accused applied for the same relief before learned Judge, ATC-II, Karachi but the same was declined vide order dated 14.09.2023.
2. Learned advocate for the applicants/accused mainly contended that complainant Mst. Faiza and P.W/victim Mst. Farah have sworn affidavits before the trial Court in which they have exonerated the applicants/accused from commission of the offence; that from contents of the FIR and other material, offence under Section 354 P.P.C is not made out. Lastly, it is contended that while hearing application for pre-arrest bail merits of the case can also be looked into. Reliance is placed upon the case of Abdul Rehman v. The State and others (2023 SCMR 2081).
3. Addl. P.G opposed the bail application mainly on the ground that evidentiary value of the affidavits is yet to be determined by the trial Court, that allegations are serious in nature. Therefore, accused are not entitled for grant of pre-arrest bail. Despite issuance of several notices, complainant chose to remain absent.
4. Record reflects that complainant and P.W/victim Mst. Farah have sworn affidavits before trial Court in which they have exonerated the applicants/ accused from commission of the offences. During investigation, case was recommended for disposal under 'C' class but cognizance was taken by Court. In the case reported as Abdul Rehman v. The State and others (2023 SCMR 2081), Apex Court has held that while granting pre-arrest bail, the merits of the case can be touched upon by the Court. The intention of the applicants/accused to outrage the modesty of victim Mst. Farah is yet to be determined by the trial Court. It is also contended before us that FIR was registered against the applicants/accused by the SHO with ulterior motives.
5. Prima facie, there are no reasonable grounds for believing that the applicants/accused have committed the alleged offences, but there are sufficient grounds for further inquiry into their guilt. Taking into consideration all the facts and circumstances, a case for confirmation of pre-arrest bail is made out, consequently, instant pre-arrest bail application is allowed. Interim pre-arrest bail already granted to the applicants/accused is hereby confirmed on the same terms and conditions.
6. Before parting with this order, we observe that crucial issue of jurisdiction of Anti-Terrorism Court to try this case under the provisions of Anti-Terrorism Act 1997 is involved in this case. Trial Court is directed to determine the point of jurisdiction before conducting trial in view of dictum laid down in the case of Ghulam Hussain and others v. The State and others (PLD 2020 SC 61).
6. Needless, to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case on merits.
7. The instant bail application is accordingly disposed of.
SA/A-88/Sindh Bail confirmed.