Imran Khan etc Vs The State etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Cr.Misc. (BA) No. 676-A/2025

JUDGMENT

Date of hearing...................03.10.2025.................................

Petitioners (Imran Khan & others) By Mr. Atif Ali Jadoon, Advocate.

Respondents (The State & another) The State By Malik Amjad Inayat, Additional Advocate General and (Complainant) By Mr. Abdul Saboor Khan, Advocate.

AURANGZEB, J.-. This petition has been moved on behalf of the petitioners namely Imran Khan son of Hassan Din, Fahad Khan son of Hamayun and Zaheeruddin son of Nazeeruddin for admitting them to post arrest bail till final conclusion of trial in crime No.519 dated 05.06.2025 registered under sections 365/506/427/386/34 PPC of police station, Lari Adda District Mansehra.

2.At the very outset, learned counsel for the complainant stated at the bar that the matter has been patched up with the petitioners and the complainant has got no objection on acceptance of the bail petition. Though the offences with which the petitioners have been charged, are not compoundable. However, the learned Additional

Advocate General (AAG) has Strongly opposed the Bail application of the petitioners on the following grounds:-

i. That the learned Judicial Magistrate through Order dated 05-09-2025, dismissed the bail application for want of jurisdiction and directed the prosecution to incorporate section 365- A PPC as per the content of FIR

ii. That the learned Sessions Judge has already dismissed the bail application on merits and

iii.That as per the judgments reported as 2024 P Cr L J 658 (Lahore High Court) and criminal Bail application No.829 of 2025 of Karachi High Court section 365-A PPC was incorporated at the bail stage and bail was refused.

3.Question for Determination before this court is that whether a Court having a bail application Under chapter XXXIX of The Code of Criminal procedure 1898, has jurisdiction to direct the incorporation, deletion, or alteration if any penal Section in the FIR, or whether such power is exclusively vested in the Trail Court under Section 227 and 228 Cr.P.C?

4.Section 497 PPC empowers the Court to grant or refuse bail in non-bailable offences, keeping in view the nature of accusation and available material. However, the Jurisdiction at bail Stage is limited and tentative it does not extend to determining the substance of the charge.

5.Under Sections 227 and 228 Cr.P.C, the trial Court alone possessed authority to alter or add any charge at any stage before the Judgment. This Statutory scheme makes it evident that a bail Court cannot direct incorporation or deletion of any penal provision, as doing so would amount to usurping the power reserved for the trail, not the court deciding bail application.

6.In the present case, since The challan has already been submitted before the trial Court under Sections 365, 506, 427, 386 and 34 PPC, it is now the trial Court’s prerogative, upon commencement of trial, to determine whether any further section such as 365-A PPC is attracted, in light of the evidence produced.

7.The Hon’ble Supreme Court of Pakistan in the case of “Muhamad Yasin v/s The State” (2016 SCMR 1740), has laid down a binding principle that:-

درخواست ضمانت۔۔۔عدالت کا مجرمانہ الزامات ميں ترميم کا اختيار۔۔۔ کسی بهی عدالت کو ضمانت کے مرحلے ميں مصنوعی مواد يا واقعات کو بنياد بنا کر کسی مجرمانہ الزام ميں ترميم کا کسی قسم کا اختيار نہيں ہے کيونکہ يہ اختيار عدالت مجاز دوران سماعت کے تحت شهادت قلم227 ضابطہ فوجداری کی دفعہ ٔ مقدمہ مجموعہ بند کرنے کے بعد کسی بهی مرحلے پر استعمال کر سکتی هے جبکہ يہ مسلمہ اصول هے کہ ضمانت کے مرحلے پر ايسا کرنا اور کسی بهی ايسے الزام ميں جو فوجداری مقدمے ميں ابتدائی رپورٹ ميں درج هو ترميم يا تحريف کرنا شجر ممنوعہ هے اور ايسا کرنا اختيارات سے تجاوز کرنے کے مترادف هے

8.While deciding a bail application, the Court is not empowered to add, delete, or substitute any penal provision in the FIR; such powers can only be exercised by the trial Court at the time of framing charge or alteration of charge.

9.Thus, the direction of the learned Magistrate dated 05-09-2025 requiring incorporation of section 365-A PPC at the bail Stage was without lawful authority and contrary to the settled law.

10.The learned AAG relied upon the judgments reported 2024

P.Cr.L.J 658 (Lahore High Court) and Criminal Bail Application No-829 of 2025 of (Sindh High Court) to Support the incorporation of section 365-A PPC at the bail Stage.

11.This Court, with utmost respect, is not in agreement with the view expressed by the Lahore High Court and Sindh High Court in the above cited judgments to the extent that they allow or Justify the incorporation of Section 365-A PPC or any additional penal provision during the hearing of a bail application. Such approach in the opinion of this Court, is inconsistent with the scheme of the Criminal Procedure Code and contrary to the binding Judgment of The Hon’ble Supreme Court

of Pakistan. Muhammad Yasin vs. State (2016

SIMR 1740)

12.Under Article 189 of the Constitution of Pakistan, 1973. The decisions of Supreme Court of Pakistan are binding upon all subordinate courts and upon High Courts; therefore, any contrary view cannot be followed. For the reasons recorded above, this Court finds no merit in the objections raised by the learned AAG.

13.Now coming to the merits of the case, the occurrence in the present case is alleged to have taken place on 30.04.2025, whereas the matter was reported to the local police on 07.05.2025, and the formal FIR was registered on 05.06.2025, showing an inordinate and unexplained delay in lodging of the crime report. In the FIR, the complainant nominated three (03) accused persons, one by name, Fahad Khan (petitioner), while the remaining two were described as unknown persons in the application moved under Section 22-A Cr.P.C. Subsequently, on 27.05.2025, the said two unknown accused were implicated by name, yet the complainant did not disclose any credible source of information leading to their identification. There is no mention in the record of any identification parade having been

conducted, nor any explanation offered as to how and on what material basis the accused persons, namely Zahir and Imran, were later charged.

Furthermore, the petitioner namely Fahad Khan had been charged through the application under Section 22-A Cr.P.C. filed on 07.05.2025. It is significant to note that all the alleged offences do not fall within the prohibitory clause of Section 497 (1), Cr.P.C. The record further reflects that the petitioner namely Fahad Khan obtained pre-arrest bail (BBA), which was confirmed on 14.07.2025 on the basis of a compromise reached between the parties. However, on a subsequent bail cancellation application (BCA) filed by the complainant, the earlier order confirming bail was recalled on 07.08.2025.

14.Thus, viewed in entirety, the case is one calling for cautious scrutiny, where the delay in reporting, the vague implication of co-accused, absence of identification proceedings, and non- attraction of the prohibitory clause collectively render the matter one of further inquiry, justifying the grant of bail to the petitioners within the contemplation of Section 497(2), Cr.P.C.

15.For what has been discussed hereinabove, the instant petition is accepted and the petitioners

are admitted to bail on furnishing bail bonds in the sum of Rs.1,00,000/- (One lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate. The sureties must be locale, reliable and men of sufficient means.

These are the detailed reasons of the order of even date.

Announced:

Aftab PS*/ JUDGE