MUHAMMAD ASLAM Versus THE STATE
This petition concerns a request for pre-arrest bail in a criminal case registered under Section 302/34 of the Pakistan Penal Code 1860. The petitioner, Muhammad Aslam, sought relief after his initial application was dismissed by the Court of Session. The core legal question was whether the petitioner was entitled to pre-arrest bail given the circumstances of his implication. The High Court observed that the petitioner was not named in the initial F.I.R. and was only implicated seventeen days later through a supplementary statement based on an alleged extra-judicial confession. Crucially, the Investigating Officer confirmed that the witnesses to the alleged confession had not joined the investigation, no recovery was required from the petitioner, and the petitioner had cooperated with the investigation. Consequently, the Court held that the petitioner's claim of mala fide implication appeared substantiated. The Court confirmed the ad interim pre-arrest bail, establishing the principle that where the prosecution fails to justify the need for physical custody and the accused's implication appears potentially mala fide, pre-arrest bail is appropriate.
- Is pre-arrest bail warranted when an accused is not named in the initial F.I.R. and is implicated only through a belated supplementary statement?
- Does the failure of the prosecution to justify the need for physical custody of an accused support the grant of pre-arrest bail?
- Can pre-arrest bail be confirmed when the witnesses to an alleged extra-judicial confession have failed to join the investigation?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
Through this petition Muhammad Aslam petitioner has sought pre‑arrest bail in case F.I.R. No.15 registered at Police Station, Khuddian, District Kasur on 12‑1‑2003 for an offence under section 302/34, P.P.C. Earlier an application submitted by the petitioner for the same relief before the Court of Session, Kasur had been dismissed by the learned Additional Sessions Judge, Kasur on 10‑2‑2003 on account of absence of the petitioner as well as on the merits of the case. Hence, the present petition before this Court.
2. After hearing the learned counsel for the parties and going through the record it has been noticed that the petitioner had not been nominated in the F.I.R. as one of the perpetrators of the alleged offence and the petitioner's name had surfaced in this case for the first time on 29‑1‑2003 through a supplementary statement made by the complainant after about seventeen days of the alleged occurrence. In the said supplementary statement the complainant had disclosed that he had come to know through two witnesses namely Chaudhry Muhammad Jaffar and Masroor Ahmad regarding the petitioner's involvement in this case as the petitioner had allegedly made an extra‑judicial confession in that regard before the said witnesses. The Investigating Officer of this case is present before this Court alongwith the relevant record and he has categorically stated that so far as the above‑mentioned witnesses before whom the petitioner had allegedly made an extra‑judicial confession have not appeared before the Investigating Officer nor have they joined the investigation so far. He has further stated that no recovery is to be affected from the petitioner's possession and also that the petitioner has also joined the investigation of this case whereas the complainant party has failed to join the same. In this backdrop he has categorically maintained that he does not need physical custody of the petitioner for the purposes of, investigation of the above mentioned criminal case at this stage. In view of this stand taken by the Investigating Officer the assertion of the learned counsel for the petitioner regarding mala fide implication for the petitioner in the case in hand is an assertion which may not be without any foundation or substance.
3. For what has been discussed above this petition is accepted and the ad interim pre‑arrest bail already allowed to the petitioner by this Court vide order dated 10‑3‑2003 is hereby confirmed subject to furnishing of a fresh bail bond by the petitioner in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the Area Magistrate of Police Station, Khuddian, District Kasur.
H. B. T./M-2237/L Ad interim pre‑arrested bail confirmed.