2021 S C M R 518
[Supreme Court of Pakistan]
Present: Mazhar Alam Khan Miankhel and Qazi Muhammad Amin Ahmed, JJ
ABID HUSSAIN---Petitioner
Versus
TASSAWAR HUSSAIN and another---Respondents
Criminal Petition No. 996 of 2020, decided on 2nd
February, 2021.
(Against
the order dated 11.08.2020 of the Lahore High Court Rawalpindi Bench passed in
Cr. Misc. No.1339-B/2020)
(a) Criminal Procedure Code (V of 1898)---
----Ss. 498 & 497---Constitution of Pakistan,
Arts. 4 & 9---"Pre-arrest" and "post-arrest" bail---
Distinction--- Right to liberty---Scope---Constitution pledged freedom to law
abiding citizens; an offender, alleged to have committed some crime, was
subject to a different legal regime; he was certainly entitled to due process
of law and a fair and speedy trial, however, once taken in custody, his release
was regulated by the provisions of the Code of Criminal Procedure, 1898 and he
must make out a case within the statutory framework provided thereunder,
therefore, a pre-arrest bail could not be granted as a substitute for post
arrest bail.
(b) Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), Ss. 302(b)
& 337-D---Qatl-i-amd, jaifah---Pre-arrest bail, cancellation of---Accused
had been avoiding process of law ever since registration of the case as was
evident from the record---Accused twice secured ad-interim bail, each dismissed
on account of his failure to appear before the Court on the date fixed---Such
conduct by itself disentitled the accused from judicial protection---Accused
had made oblique reference to mala fide on part of complainant side, but with
no substance therein---Four injured persons unanimously implicated the accused
for participation in the occurrence, therefore mala fide cannot be readily
inferred---Though accused was declared innocent during first round of
investigation, however the same was subsequently recalled by the police
itself---Petition for leave to appeal was converted into appeal and allowed and
pre-arrest bail granted to accused was cancelled/recalled in circumstances.
Mukhtar
Ahmad v. The State and others 2016 SCMR 2064 ref.
Syed
Hamid Ali Bokhari, Advocate Supreme Court for Petitioner.
Haider
Mehmood Mirza, Advocate Supreme Court and M. Sharif Janjua, Advocate-on-Record
for Respondents.
Ch.
Sarwar Sindhu, Additional Prosecutor General Punjab with Majid, I.O. for the
State.
Date
of hearing: 2nd February, 2021.
ORDER
QAZI
MUHAMMAD AMIN AHMED, J.---Impugned
herein is order dated 11.08.2020 by a learned Judge-in-Chamber of the Lahore
High Court Rawalpindi Bench Rawalpindi whereby Tasawar Hussain respondent, one
of the accused in a case of murderous assault, blamed for a straight effective
shot on the abdomen of Husnain Riaz PW confirmed by medical evidence, has been
granted bail in anticipation to his arrest. It is alleged that on the eventful
day, in the backdrop of a dispute over the possession of a residential house,
located within the precincts of Police Station Chontra Rawalpindi, the
respondent along with co-accused, eight in number, differently armed with
lethal weapons, mounted an assault at 6:30 p.m., in consequence whereof,
Husnain Riaz sustained three entry wounds on the frontal part of his body; his
wife Ghazala Bibi, Salma Bibi and Abid Hussain also endured injuries.
Avoiding
arrest through multiple applications, three in number, the respondent was
lastly refused anticipatory bail by a learned Additional Sessions Judge on
14.7.2020, however, extended protection vide the impugned order, premised upon
the following reasons:
"It
is straightaway observed that though the role of causing a firearm injury to
injured PW has allegedly been attributed which injury has been declared falling
within the mischief of section 337-D, P.P.C. yet during the course of first
investigation, he has been declared innocent by the Investigating Officer.
Further, besides the petitioner, four others accused namely Ejaz Hussain,
Waseem Ahmad, Saleem Ahmad and Khurram Shahzad were also implicated in the
crime report, with role of firing but during the course of investigation
petitioner and co-accused Waseem Ahmad have been declared innocent, whereas
Saleem Ahmad, having allegation of firearm injury to Mst. Salma Bibi has been
admitted to bail vide order dated 13.11.2019, passed in Crl. Misc. No.1867-B of
2019. Other co-accused namely Khurram Shahzad, with the allegation of causing a
firearm injury to Abid injured complainant has also been granted bail vide
order dated 29.01.2020 and admittedly so far no cancellation of bail petition
has been filed by the complainant. More so, confirmatory report regarding all
the empties secured from the place of occurrence has been received, according
to which, all have been found fired from the pistol allegedly recovered on the
pointing out of co-accused. Moreover, importantly close relatives of the
petitioner have been implicated in this case and as such possibility cannot be
ruled out that the petitioner being one of the elder and real brother of Ejaz
Hussain co-accused has falsely been implicated in this case by throwing wider
net. In such backdrop, case against the petitioner has become to be one of
further inquiry falling within the ambit of section 497(2), Cr.P.C. Liberty of
a person is precious right guaranteed by the Constitution of Islamic Republic
of Pakistan, 1973, which cannot be taken away until and unless there is cogent
reasoning."
2. Heard.
Record perused.
3. The
impugned view fails to commend approval for reasons more than one; first that
it is a journey, inordinately lengthy, into forbidden territories as
observations recorded by the learned Judge, in the absence of evidence, yet to
be recorded, though presumably tentative, nonetheless, transcend far beyond the
barriers of tentative assessment; conclusiveness of the impugned findings,
being part of a bail order, though judicial viewed as without any bearing upon
the final outcome of the case, a business to be best settled by the trial
Judge, nonetheless, tend to have plunged the prosecution into a situation,
embarrassing by all means towards its final destination and, thus, ought to
have been avoided. Reference to the protection of freedom guaranteed under the
Constitution is equally misplaced as the Constitution pledges freedom to the
law abiding citizens; an offender, alleged to have committed some crime, is
subject to a different legal regime; he is certainly entitled to due process of
law and a fair and speedy trial, however, once taken in custody, his release is
regulated by the provisions of the Code of Criminal Procedure, 1898 and he must
make out a case within the statutory framework provided thereunder, therefore,
a pre-arrest bail cannot be granted as a substitute for post arrest bail.
Respondent's previous conduct also escaped notice by the learned Judge; he had
been avoiding process of law ever since registration of the case as is evident
from the record, before the last dismissal on merits, he twice secured
ad-interim bail, each dismissed on account of his failure to appear before the
Court on the date fixed. It has been held by this Court in the case of Mukhtar
Ahmad v. The State and others (2016 SCMR 2064) that such conduct by itself
disentitles an applicant to judicial protection. Though there is an oblique
reference to a lurking mala fide, yet with no substance therein. In a run of
the mill criminal case with four injured unanimously clamouring respondent's
participation in the occurrence with a half cooked theory of his innocence,
subsequently recalled by the police itself, the mala fide cannot be readily
inferred. Impugned order being inconsistent with the purposes and
considerations for extending judicial protection to the innocent, exposed to
the horrors of abuse of process of law, for motives oblique and sinister,
cannot sustain. Petition is converted into appeal and allowed. Impugned order
dated 11.08.2020 is set aside; pre-arrest bail granted to the respondent is
cancelled.
MWA/A-9/SC Bail
cancelled.