MUHAMMAD ARSHAD and anothers vs THE STATE and another
This criminal matter arises from a petition for leave to appeal against the dismissal of pre-arrest bail by the Lahore High Court, which had set aside the confirmation of pre-arrest bail previously granted to the petitioners—police officials accused of abducting, wrongfully confining, and injuring the complainant, and extorting illegal gratification. The core legal question was whether the petitioners, facing serious allegations of taking the law into their own hands while serving as police officials, were entitled to the extraordinary discretionary relief of pre-arrest bail. The Supreme Court of Pakistan held that where the investigation prima facie connects the accused with the commission of heinous offences and shows no mala fides or enmity in the case's registration, pre-arrest bail is rightly refused. The key principle laid down is that members of the police force, whose duty is to maintain public order and enforce the law, forfeit their claim to extraordinary discretionary pre-arrest relief when credible allegations of abusing their official authority to commit crimes are established on the record.
- Whether police officials facing credible allegations of abduction and extortion are entitled to pre-arrest bail?
- Does the lack of mala fides or enmity in the registration of a criminal case disentitle an accused to pre-arrest bail?
- Is leave to appeal maintainable against the high court's refusal to grant pre-arrest bail when prima facie evidence connects the accused to the crime?
- Section 364, Pakistan Penal Code 1860
- Section 342, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
ORDER
1. RAJA AFRASIAB KHAN, 24th of July 1994 at about 2-10 p.m., a case under section 364/342/3377L(ii)/148/149, P.P.C. And section 5(2) of Prevention of Corruption Ad, 1947 was registered against Muhammad Arshad, Muhammad Idrees (petitioners) and 3' others with Police Station Shandara, Lahore on the statement of Muhammad Zulfiqar. The petitioners, allegedly, abducted the complainant and injured him while he was in their custody. He was released by the accused only after receiving Rs,5,000 as illegal gratification. A petition for pre-arrest bail was moved by the petitioners and an interim bail was allowed to them by a learned Additional Sessions Judge, Lahore. Learned Special Judge Anti-Corruption, Lahore confirmed the bail on 25-8-1994. Bail after-arrest to the remaining accused was also granted. The complainant (Zulfiqar) moved Cr1.
2. Misc. No, 3604-B/94 for cancellation of bail allowed to the accused. On 12th of September 1994, a learned Judge in the Lahore High Court dismissed the bail petition of the petitioners while rejected the cancellation application to the extent of remaining co-accused observing:-- "In view of the above discussion, petition to the extent of Arshad and Idrees, respondents 1 and 2 is accepted. The order dated 25-8-1994 of the learned Special Judge Anti-Corruption, Lahore to their extent is set aside. The petition to the extent of Changaz and Abdur Rasheed, Constables, respondents 3 and 4 is dismissed. It may be observed that the accused respondents 1 and 2 on announcement of the order, by pushing aside the learned Advocates in the Court managed to slip away. This conduct of the accused Police officials is reprehensible. The SSP, Lahore is directed to ensure that law have its own course. He may also see the desirability of having the investigation of the case conducted by some honest gazette police officers of Crimes Branch."
3. ' This petition seeking leave to appeal has been instituted.
4. Learned counsel submits that the evidence so far collected by the investigator does not involve the petitioners in the commission of crime. According to him, the offence which is alleged to have been committed by the accused is boilable on the face of it. Abdul Rauf, A.S.I. And Malik M. Muzaffar, S.I.
5. Are present with record. They found the petitioners to be guilty of commission of crime. This being so, no relief could be given to the petitioners inasmuch as, prima facie, they had taken the law into their own hands by giving beating and detaining the complainant in their custody without any legal justification. It is well-settled that pre-arrest bail relief is granted only in those matters where it would appear that the registration of such cases was based on enmity/mala fide or where no offence was shown to have been committed on the very face of record. This is not the position in this case. The petitioners belong to Police Department which has been created to prevent and detect crime, enforce the law and maintain public order, peace, and safety. The allegations having been leveled against the petitioners are horrible, indeed, and are against the purposes for which the Police Department was established. They, therefore, do not deserve this extraordinary discretionary relief of bail before arrest. This is not a fit case for grant of leave to appeal. This petition is, accordingly, dismissed.
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