GHULAM MUHAMMAD KHAN vs MUHAMMAD SADIQ and others
This petition for leave to appeal was filed under Article 185(3) of the Constitution of Pakistan 1973 by the first informant against a Lahore High Court order granting pre-arrest bail to the respondents in a murder case registered under Sections 302, 34, and 109 of the Pakistan Penal Code 1860. The petitioner contended that the High Court's observations regarding the unnatural conduct of the prosecution witnesses and the prima facie mala fide nature of the allegations amounted to a premature decision on the merits of the case. The Supreme Court of Pakistan observed that the High Court's order explicitly protected the trial court's powers, clarifying that the grant of bail would not abridge the trial judge's authority to cancel bail if sufficient incriminating evidence emerged during the trial. Holding that the High Court's discretionary order was well-reasoned and did not prejudice the trial, the Supreme Court declined to interfere and dismissed the petition.
- Whether observations made by a High Court while granting pre-arrest bail prejudice the trial if the order explicitly preserves the trial court's power to cancel bail upon the emergence of sufficient evidence?
- Can pre-arrest bail be granted where the conduct of the witnesses of abetment is prima facie contrary to normal human behaviour and suggests mala fide implication?
- Does the submission of a challan in court restrain the judiciary from exercising its discretion to grant pre-arrest bail?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Article 185(3), Constitution of Pakistan 1973
- Qanun-e-Shahadat Order 1984
' CH. MUHAMMAD ARIF, J.---Respondents Nos.l and 2 were allowed pre-arrest bail by a learned Judge in Chambers of the Lahore High Court, Lahore in Criminal Miscellaneous No,3791-B of 2000 in a case under sections 302/34/109, P.P.C. With, among others, the following observations:-- ' "I see eye to eye with the arguments raised by the learned counsel for the petitioners that if Suhrab Khan and Allah Ditta witnesses of the abetment heard the petitioners instigating their co- accused to liquidate Asghar Ali and they would provide them with arms and ammunition and shall also be responsible for the expenditure of litigation, why did they not immediately inform this development to the complainant so that remedial measures could have been taken to the contrary they gave no significance to such an important event and took a bus for Jhang to make purchase which could have been put off to another day. This conduct exhibited by the two witnesses is contrary to human behaviour. Statements of these witnesses were read over by the learned counsel for the State but I did not want to comment or make any observation lest it may prejudice the case of any one of the parties during the trial. Suffice it to say that M. Nawaz and Sadiq Khan petitioners not being related to Asghar Ali or the complainant they would not have any grudge for the abduction of Mst. Naseem Mai, as admittedly both the parties are Baluch by caste and only immediate relations feel provoked by the abduction of their women-folk. In other words charge against the petitioners have been brought with a mala fide intention to implicate them, prima facie. I am not impressed with the arguments of the learned counsel for the complainant that the petitioners acknowledged their guilt in presence of 40/50 persons during investigation because acknowledgement (if any) was made to a person in authority, as such admission is excluded by the provisions of the Qanun-e-Shahadat Order, 1984 being inadmissible. Submission of challan in the Court also does not support the prosecution in any manner so as to restrain the Court from exercising its discretion which always is to be exercised on the touch stone of the allegations made."
2. The petitioner, first informant, has made this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 or leave against the impugned judgment dated 25-7-2000, mainly on the ground that some of the observations made therein by the learned Judge in Chambers are tantamount to deciding the case in favour of the defence right away.
3. However, when the attention of the learned counsel was drawn to paragraph 10 of the impugned judgment to the effect that: "This order would not in any manner abridge powers of the trial Judge in seeking cancellation of the bail in case there is sufficient evidence which comes on the file through the mouth of the witnesses regarding the commission of the offence, by the petitioners (respondents Nos.1 and 2 herein)" (underlining is for emphasis), he was not in a position to support this petition and submitted that the observations in the impugned judgment may be further diluted by this Court.
4. We are afraid, in the presence of the observations quoted in the immediately preceding paragraph, we do not find any ground for interference with in the well-reasoned discretionary order of the High Court granting pre-arrest bail to the private respondents herein.
5. Resultantly, the petition fails and is hereby dismissed.