NASIR MAHBOOB Versus THE STATE
This is a criminal petition for pre-arrest bail arising from a murder case where the petitioner, an advocate, was specifically nominated in the First Information Report with the role of causing a firearm injury to the deceased. The core legal question was whether the petitioner made out a case for the confirmation of pre-arrest bail in light of conflicting affidavits, a plea of alibi, and the absence of deeper appreciation of evidence at the bail stage. The Lahore High Court held that since the petitioner was nominated in the promptly lodged F.I.R. with a specific role and the authenticity of the contradictory affidavits could not be resolved without deeper appreciation of evidence, the petitioner was not entitled to pre-arrest bail. The court laid down the principle that pre-arrest bail should be refused where the accused is nominated with a specific role in a heinous crime and disputed questions of fact like a plea of alibi supported by counter-affidavits require deeper appreciation of evidence which is impermissible at the pre-arrest bail stage.
- Whether pre-arrest bail can be confirmed when the accused is nominated in the F.I.R. with a specific role of causing injury?
- Can the authenticity of conflicting affidavits regarding a plea of alibi be determined at the pre-arrest bail stage?
- Whether a case of pre-arrest bail requires deeper appreciation of evidence by the High Court?
- Section 497(2), Code of Criminal Procedure 1898
- Article 163(3), Qanun-e-Shahadat Order 1984
ORDER
Learned counsel for the petitioner in support of this petition submits that the petitioner has been falsely implicated in this case, that there is long-standing .enmity between the parties and they are daggers drawn. He submits that there is no injured eye-witnesses, although, according to the learned counsel, so many fires were made at the spot but only one person, the deceased received the injuries, that the petitioner, at the very outset has raised the plea of alibi and in this regard he has placed many affidavits of the Advocates stating therein that the petitioner remained with them on the day of occurrence from 1-30 p.m. to 2-30 p.m. He submits that the petitioner had also appeared in a civil suit in the Lahore Civil Court and he signed one of the interim order, dated 21-4-2004 also. Learned counsel submits that in fact it is a case of no evidence and the same is covered by subsection (2) of section 497, Cr.P.C. Learned counsel for the petitioner has relied upon 1975 SCMR 151, 1975 SCMR 219, 1986 PCr.LJ 1091; PLD 1990 Lah. 161 and PLJ 1997 SC (AJ&K) 349.
2. On the other hand learned counsel for the complainant submits that if the petitioner is an Advocate on the other side brother of an Advocate has been murdered. He submits that it is a broad-daylight occurrence with promptly lodged F.I.R. Petitioner is named in the F.I.R. with specific role. Ocular account is corroborated by medical evidence and that so many affidavits have also been placed on the record from the complainant side including Advocates stating therein that the petitioner was present at the spot on the day of occurrence at the relevant time. He Wither submits that plea of alibi for the first time was raised 15 days after the occurrence, that there were no special circumstances in this case that application of the petitioner for bail before arrest was entertained directly by this Court, although his co-accused are also on interim bail before arrest granted by the learned Sessions Judge, Khushab. He submits that every criminal case is to be decided on its own facts and, merits, that there was no mala fide or ulterior motive on behalf of the complainant and the police. He has relied upon PLD 1990 SC 83 arid has read the relevant portion i.e. head-note (e) before this Court. He has also referred sub-clause (3) of Article 163 of Qanun-e-Shahadat Order, 1984. He submits that it is not a case of bail before arrest.
3. On the other hand the learned Additional Advocate-General assisted by the learned State Counsel submits that petitioner is named in the F.I.R. with specific role of causing injury to the deceased, that there are affidavits from both the sides and this is not the proper stage to determine the authenticity of the affidavits. He submits that the case-law produced by the learned counsel for the petitioner is not applicable in the instant case because in those cases there were no counter-affidavits as are in the instant case, that the police till today is of the opinion that the petitioner is guilty in this case because according to the police the petitioner has failed to produce any solid evidence in his favour.
4. I have heard the learned counsel for the parties and also have gone through the record. I had entertained this application because it was stated before me at Bar that the life of the petitioner is in danger and if this application, is not entertained here there thee will be many risks to his life.
5. From both the sides affidavits have been produced. I would not like to say anything about the authenticity of the affidavits filed by both the parties but the fact remains that this is a case of bail before arrest in which petitioner is named in the F.I. R. with role of causing specific injury on the person of the deceased. So without going into deeper appreciation and touching the merits of the case, I am not inclined to confirm the interim bail before arrest. In this view of the matter the interim bail already granted to the petitioner is hereby withdrawn. Disposed of.
H.B.T./N-99/L Interim bail withdrawn.