FAYYAZ and others vs THE STATE
This matter arises from a petition for pre-arrest bail filed by Fayyaz and others in connection with a murder case registered under Section 302/34 of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to pre-arrest bail when they were not named in the first information report, the eyewitness had exonerated them, prior civil and criminal litigation existed between the parties indicating possible mala fides, and the state counsel conceded the absence of incriminating evidence. The Lahore High Court accepted the petition and granted pre-arrest bail to the petitioners. The court laid down the principle that where an eyewitness exonerates the accused, no incriminating evidence connects them to the crime, and previous litigation suggests mala fide or ulterior motives behind the registration of the case, pre-arrest bail ought to be granted.
- Whether pre-arrest bail can be granted when the accused are not named in the F.I.R. and the eyewitness exonerates them?
- Does the pendency of prior civil and criminal litigation between the parties support a finding of mala fides in criminal proceedings?
- Whether pre-arrest bail should be granted when the state counsel concedes that no evidence connects the petitioners to the alleged offense?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' F.I.R. Was lodged by Muhammad Siddique for the murder of Khalid Mehmood who was his real brother, against the two unknown persons. Muhammad Siddique is not eye-witness of this case, what was told to him by Mst.Rehana and his son Tariq Mehmood, he narrated in the F.I.R.
2. Learned counsel for the petitioners in support of this petition for bail before arrest submits that the petitioners are not named in the F.I.R., that in fact Fayyaz and Shehzad are real brothers and Khalid is an employee in their workshop, that Fayyaz had filed a complaint under section 302, P.P.C.
Against Siddique for the murder of his father and that matter is pending before this Court. He submits that criminal and civil litigations are also pending between the parties, that an extra judicial confession was concocted on 18-2-2001 while the occurrence took place on 26-2-2001, that Khalid is witness in the above said complaint which was dismissed by the learned Sessions Judge, Sheikhupura and the revision petition in this regard is pending before this Court. He submits that Mst. Rehana has exonerated the petitioner, that there is no evidence on the record to_ connect the petitioners with the alleged offence under section 302/34 P.P.C. Adds that the petitioners have joined the investigation.
3. On the other hand learned State counsel is apt in a position to rebut the submissions made by the learned counsel for the petitioners and submits that this is a case which is full of doubt and there is no evidence on record which can connect the petitioners with the offence of commission of murder.
4. The Investigating Officer who is present in Court submits that the petitioners are guilty in this case.
5. I have heard the learned counsel for the parties. Learned State counsel after going through the police file has admitted that there is no such evidence which can connect the petitioners with the offence under section 302/34, P.P.C. Petitioners are not named in the F.I.R. And the complainant lodged the F.I.R. On the basis what was he told by Mst. Rehana and Tariq. Civil and criminal litigation is also pending between the parties. Mst. Rehana the eye-witness on whose asking the complainant had lodged the F.I.R., has exonerated the petitioners. Nothing is to be recovered from the petitioners. Learned State counsel has not supported the prosecution case, it means that the instant case ha been lodged with mala fide and ulterior motive with the connivance of the local 'police/ In this view of the matter, this petition is accepted and the petitioners are allowed bail in the sum of Rs,50,000 (Fifty thousand) each with one surety each in the like amount to the satisfaction of trial Court.
Pre-arrest .