NIAZ AHMAD vs KHALID NAWAZ and 2 others
This petition sought the cancellation of pre-arrest bail granted to two respondents, Khalid Nawaz and Muhammad Bakhsh, by the Additional Sessions Judge. Regarding Muhammad Bakhsh, the court noted that the allegation was conspiracy and abetment, and the lower court found insufficient material to connect him to the offense, granting him the benefit of doubt. The High Court declined to interfere with this exercise of discretion. Conversely, regarding Khalid Nawaz, the lower court had observed that even if the primary charge under Section 302/34 of the Pakistan Penal Code 1860 was not applicable, the respondent would still be liable under Section 148/149 of the Pakistan Penal Code 1860, as he was armed and had physically restrained the deceased. The High Court held that having found a prima facie case and the applicability of these provisions, the lower court erred in granting the extraordinary concession of pre-arrest bail. Consequently, the High Court cancelled the bail of Khalid Nawaz, while clarifying that he remained at liberty to seek post-arrest bail.
- Is pre-arrest bail appropriate when a court finds a prima facie case against an accused?
- Can a court cancel pre-arrest bail if the lower court misconstrued the principles governing such relief?
- Does the finding of a prima facie case under Section 148/149 of the Pakistan Penal Code 1860 preclude the grant of pre-arrest bail?
- Section 109, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
' Through this petition cancellation of bail granted to Khalid Nawaz and Muhammad Bakhsh, respondents Nos.1 and 2, respectively, is sought.
2. As regards Muhammad Bakhsh respondent, the allegation against him is that of conspiracy and abetment in the commission of offence. The learned Additional Sessions Judge has placed reliance on two cases namely 1997 PCr.LJ 850 and PLJ 1979 SC 377 wherein it was observed that section 109, P.P.C. Was repugnant to Injunctions of Islam. The learned Additional Sessions Judge has not properly interpreted the law laid down, as such he fell in error to allow pre-arrest bail to Muhammad Bakhsh. Without making any comments on the legal aspect of the case, suffice it to say that the allegation against him is that of abetment and according to the learned Additional Sessions Judge, there was no sufficient material to connect him with the commission of the offence, therefore, by extending benefit of doubt, he was admitted to pre-arrest bail. I am not inclined to interfere with the order. As such, this application to the extent of Muhammad Bakhsh respondent is dismissed.
3. However, the case of Khalid Nawaz alias Saqi respondent is different. The learned Additional Sessions Judge has himself observed that even if section 302/34, P.P.C. Is not made applicable against him, he would be guilty under section 148/149, P.P.C. As according to the prosecution, he was armed with pistol and had taken the deceased in his clasp. After observing the same, he proceeded to admit him to bail before arrest. Pre-arrest bail is an extraordinary concession which is to be extended to an accused person who has been implicated falsely. If it was observed by the learned Additional Sessions Judge that there was prima facie case against respondent and he held the deceased into clasp and provisions of section 148/149, P.P.C. Were applicable, there was no occasion to admit him to bail before arrest. I am, therefore, of the view that the learned Additional Sessions Judge has misconstrued the law and the principles applicable to grant of pre-arrest bail. I am, therefore, constrained to withdraw the bail allowed to Khalid Nawaz respondent. He will surrender himself before the police. However, this order will not preclude him from moving for grant of bail after arrest.
4. The petition is disposed of with the above observations.
Cited by 1 case
- MAQSOODA BIBI vs ABDUL AZIZ and 4, others 2009 P Cr. L J 974