BCA No.94-Bof 2024 Assad Ullah Vs Dilawar Khan etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COI]RT,

BAI\I\ruBENCH (Judicial Department) Cr: Misc: BCA No. 94-812024

Assad Ullah.

Versus Dilawar Khan etc.

JUDGMENT

Date of hearing 25.04.2025.

For petitioner:- NIr. Malik Alfitar Nawaz Khattak, advocate.

For State:- Mr. MuharunadAsghar Khan, Ahmadzai, Addl: A.G.

For respondent- Abdul Jabbar Khan, advocate.

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ABDAL FAYAZ, J.- Through this bail

cancellation petition, Assad Ullah, petitioner/ complainant, has called in question the order dated 13.11.2024 of the leamed Additional Sessions Judge-III, Karak, whereby ad-interim pre-arest bail / earlier granted to the respondenUaccused namely Dilawar Khan was confirmed, in a criminal case vide F.I.R No.726 datad 24.10.2024 registered u/ss 3521337-A(iii) P.P.C at Police Station, Latamber, District, Karak.

2 Petitioner/complainant Assadullah, along with his mother Zait-un-Nissa on 04.10.2024 at

abotfi 22:30 hours reported the matter to the police in the Police Station that after offering "Maghrib Nitnaz", he was going to his house from the mosque when reached the house of his uncle Dilawar Khan, he emerged and on seeing the complainant started beating the complainant with fists and kicks, as a result whereof he got hit on his nose and injured.

Dispute over property was alleged as motive for the incident. Delay in lodging the report was explained as firstly the complainant went to KDA hospital for medical treatrnent. Initially, the above report of petitioner/complainant was reduced into writing vide Naqalmad No.21 dated 04.10.2024, followed by the ibid F.I.R which was registered after due mqulry.

3 Learned counsel for the parties and learned Addl: A.G for the State have been heard at length and with their valuable assistance, perused the record.

4.The perusal of the impugned order of the leamed court below reveals that the grounds made basis for the confirmation of the ad-interim pre- arest bail already granted to the respondent/accused was nothing more but deeper appreciation of the

v record which is unwarranted at the bail stage. The learned court below has held the case of accused as one of further inquiry and even did not touch the basic ingredient of malafide or ulterior motives for false implication of the accused, which is a sine qua non for confirmation of pre-arest bail. Though, the pre-arrest bail being an extra-ordinary relief can only be extended in the cases where an accused does not prima-facie appears to have committed a non- bailable offence particularly when only oral allegations axe leveled in the F.I.R. Thus, the learned court below fell into effor while passing the { impugned order, which calls for the interference of f this court. Reliance is placed on Murad Khan v.

Fazal-E-Subhan and another State [PLD 1983 821, wherein it was held:-

"The foregotng resume of the case'lan stnce 1949 and the recent trend of authortty would show that notwithstanding varied facts, this Court always thought it necessary to look for such circumstances whtch wouldfurnish then assumption that the police was motivated on Political considerations or other ulterior reasons, before granting pre-arrest bail.

In this case, with respect, it is pointed out that the learned Judge in the High Court failed to notice the principles discussed above. Learned counsel for the respondent remained unable to

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satisfy us with regard to the condition of mala fide of the intended arrest. It was, therefore, not a fit case for grant of anticipatory batl, though after arrest the petitioner would have been at liberty to urge the point on the basis of which the impugned order was passed. "

Similarly, in another case "Sarwar Sultan v. The State and another" IPLD 1994 SC 1331, it was held:-

" 9. From legal angle, it can be said that there ls material dffirence) between bail after arrest as contemplated under section 497, Cr.P.C. and bail before arrest under section 498, Cr.P.C. In non-bailable offence, an accused is not to be released on bail by the Court, if there appear reasonable grounds for believing that he has been gilty of ffince punishable with deoth or imprisonrnent for life or ten years. Of course it is also provided that bail can be granted on exceptional grounds of age, in/irmity and sex and also if there are stfficient grounds for further inqutry and also on the ground of statutory delay. As against that under section 498, Cr.P.C. High Court or Court of Session can grant bail at any stage and this provision is normally used for bail before arrest. In this provision amendment has been made and by Code of Criminal Procedure (Amendment) Act XII of 1976 section 498-A is inserted imposing restriction on grant of bail before orrest to a person, who does not surrender before the Court or against whom no case is registered. Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution c$e tnay suffer for want of recoverY of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime. The Court has to keep in view all these factors in order to

v maintain balance between both parties and would be cautious not to give undue adtantage to one party over the other at the stage of investigation. Of course there is no cavil about the proposition that the Court has power to grant bail before arrest in an appropriote case, if the Court ls satisfied that is a fit case for grant of such reliefwithin the limits of law also it stated above. "

Yet, in another case "Muhammad Azarn v.

The State" [PLD 1996 7ll, the Hon'ble Supreme Court of Pakistan has held:- " Afier hearing the learned counsel for the parties and reading the record, we agree with the observation of the High Court that allegations levelled against petitioner are serious in nature the discretion in refusing bail before-arrest to the petitioner has rightly been exercised. The right of pre orrest bail ,s limited to exceptional and rare cases which are based on mala Jide/enmity or where no offence is shown to harc been committed on the bare reading of F.I.R. This is, undoubtedly, nut a case from that category. There is, therefore no substance in this petition which is dismissed. Leave to appeal ls Refused."

Furthermore, in the case uAshir Wasim

Babar v. The State" [2006 SCMR 4071, the Hon'ble apex court has held that:- " 8. We have heard learned counsel for the parties and have also gone through the evidence so made ovailable before us. The cose w(N fixed on 25th August, 2005, when the petttioner was not present along with his counsel. However, it was postponedfor today's hearing i.e. 26th August, 2005. Learned counsel stated

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at the bar that he was contesting the elections of Nazim in UC-17 and now he has succeeded in the elections, therefore, he failed to attend the Court on the previous date of hearing. Contesting election openly the office of Nazim by petitioner being qn accused for the offence under sections 324/337-A(2) and j37-L(2), P.P.C. itself is an evidence that the authorities, including the Incharge of Police Station Khurrianwala, District Faisalabad and the learned Presiding Officer, etc. has not caused his arrest, lmowingwell that he is involved in the ffince. It seems that petitioner on account of his inJluence attempted to circumvent the process of latv, admittedly for no other purpose but with malafide intentions, with ulterior motives. Now the question arises for examination, as to whether the petitioner has been involved in the commission of offence with ulterior motives? To answer the proposition, two things are important which are to be lrept in mind. Firstly; whether there is, a prima facie, case against the accused-petitioner on the basis of F.I.R. and the material available on d record?

And secondly; whether with ulterior motives, cose has been registered against the petitioner-accused? A perusal of the F.I.R as well as the medical evidence leads us to conclude that he inflicted injuries with the "Btttt" of the pistol on the vital part of the body of complainant i.e. head, confirms the injuries on the head of the complainant. Apparently, this fact itself goes to show that there is no ulterior motive in the registration of the case against the petitioner. As far as the happening of the incident is concerned, it has also not been denied by the petitioner. Although his case is that complainant party hod attacked upon him, but this plea has not been substantiated by him through an independent source at this stage.

9.There is yet another aspect of thts case which requires consideration i.e.

\.a, whether any harm will be caused, if the petitioner is arrested. Admtttedly, prima facie, petitioner is involved in the comrnission of offence. The complainant has charged hin for the offences under sections 324/337-A(2) and 337-L(2), P.P.C., which also includes an attempt of murder. He had also sffired at his hands, therefore, no harm would be caused if he is arrested. The investigation agency has yet to recover the crime weapon from him, which is not possible unless he ts arrested. Therefore, followtng the lavt laid down in the case of Muhammad Safdar v. State 198i SCMR 645, we ore of the opinion that he is not entitledfor bail before arrest. "

5.Be that as it frdy, there is no malafide apparent on the record which bespeaks regarding false implication of the accused in the instant case, as such, the very ingredient for the confirnation of pre-arrest is lacking.

6.Resultantly, the instant bail cancellation petition is allowed, the impugned ad-interim pre- arrest bail confirmation order dated 13.11.2024 of the respondent/accused narnely Dilawar Khan in case F.I.R No.726 dated 24.10.2024 u/ss 3521337' A(iii) P.P.C, Police Station, Latamber District Ka N rendered by the learned Additional Sessions Judge-III, Karak, is hereby recalled. However, the petitioner shall be at liberty to file application for his post-arrest bail which shall be decided by the competent court in accordance with law.

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v^ 7 These are the detailed reasons of the short order of the even date.

Announced.

*Imranullah PS* JUDGE (S.B) Hon'ble Mr. lustice Abdul Foyaz