ABDUL REHMAN and 4 others vs THE STATE
This matter comes before the Lahore High Court through criminal miscellaneous petitions seeking pre-arrest bail in respect of F.I.R. No. 136 dated 7-9-2003 registered under sections 379, 440, 148, and 149 of the Pakistan Penal Code at Police Station Sarwar Shaheed, District Muzaffargarh. The core legal question concerns whether the petitioners are entitled to confirmation of pre-arrest bail considering the tentative assessment of ownership of the property in dispute, the discharge of a co-accused by the Area Magistrate, and the fact that the petitioners have joined the investigation. The Court held that the case calls for further inquiry into the guilt of the petitioners regarding the ownership of the property, especially since the main accused was discharged with observations favoring the defense's stance. Consequently, the Court confirmed the pre-arrest bail already granted to the petitioners, subject to their continued cooperation with the investigation. The key principle laid down is that where the ownership of the property forming the subject matter of the dispute is questionable and requires further inquiry, and the accused have joined the investigation, pre-arrest bail is rightly confirmed.
- Whether pre-arrest bail can be confirmed when the ownership of the property in dispute requires further inquiry?
- Does the discharge of a main accused by the Area Magistrate impact the case of co-accused seeking pre-arrest bail?
- Is joining the investigation a relevant ground for the confirmation of pre-arrest bail?
- Section 379, Pakistan Penal Code 1860
- Section 440, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
ORDER
' This order will dispose of Criminal Miscellaneous No,2523/B of 2003 and Criminal Miscellaneous No,2571/B of 2003 as such these are the outcome of one and the same F.I.R.
2. Through this petition the petitioners have sought for the relief of their pre-arrest bail in case F.I.R.
No,136 of 2003, dated 7-9-2003 registered under sections 379, 440, 148 and 149, P.P.C. At Police Station Sarwar Shaheed District Muzaffargarh.
3. It is argued by the learned counsel for the petitioners that they have been falsely involved in this case due to mala fide of the complainant; that offence under section 440, P.P.C. Is not applicable against the petitioners, that at the most offence under section 427, P.P.C. Is applicable which is bailable one; that the provisions of section 379, P.P.C. Are not applicable as such Nazir Ahmad is not the owner of the property in dispute; that earlier the petitioners have applied for their pre-arrest bail before the learned lower Court which was dismissed in default and again they applied for ad interim pre-arrest bail but only notice to State was given: that nothing is to be recovered from the petitioners and they have joined the investigation.
4. The learned State Counsel opposed the petition on the grounds that the petitioners have misused the concession of their to them by the learned lower Court and the recovery is still to be effected from them.
' Heard both the parties. Record perused.
6. Record reveals that earlier pre-arrest bail petition of the petitioners was dismissed in default by the learned lower Court. They again applied for the same relief which was not granted. In this view of the matter, the recourse to the learned trial Court was to allow the pre-arrest bail to the petitioners but only notice was given to the State. Learned counsel for the petitioners has placed reliance on 1996 M LD p.1444. Learned counsel for the petitioners during the course of his arguments pointed out that Fazal-ur-Rehman main accused had already been discharged by the Area Magistrate vide orders, dated 11-9-2003 wherein it has also been observed that Nazir Ahmad complainant is not the owner in possession of the property in dispute. In this view of the matter the fact remains that the case of the petitioners needs further inquiry into their guilt as to who is owner of the property in dispute. The petitioners have joined the investigation as stated by the A.S.-I.
Present in Court. In view of the aforesaid circumstances. The pre-arrest hail already granted to the petitioners' vide orders dated 6-10-2003 is hereby confirmed subject to their joining investigation as and when required by the police.
Pre-arrest hail confirmed.