PLJ 2024 Cr.C. (Note) 12
[Balochistan High Court, Quetta]
Present:
Muhammad Aamir Nawaz Rana, J.
MURTAZA--Applicant
versus
STATE--Respondent
Crl.
Bail Appln. No. 457 of 2022, decided on 22.9.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 324--Bail--Allowed
of--dismissal of--Attempt to murder--Tentative assessment--Ingredients for
murderous attempt--In criminal cases each case has to be examined, analyzed and
assessed on its own facts and attending circumstances--No stringent rule can be
observed while exercising jurisdiction in criminal cases particularly vis-à-vis
bail matters Grant of bail is a discretionary relief, it is of amount
importance that exercise of discretion is structured upon recognized judicial
principles of criminal jurisprudence--The tentative assessment of available
material is required at, bail stage but merits of case can also be touched and
if any doubt is observed, benefit of doubt can be extended to accused even at
bail stage--Prima facie, allegedly one shot was fired at complainant
that too at non-vital part--Tentative assessment of material available on record
transpires that ingredient, necessary for murderous attempt on part of
applicant require further probe--Though pointing out pistol and pressing
trigger manifests intention but under what circumstances that act was committed
that too would require careful analysis by trial Court, as to whether, it was
an intentional act or just at spur of moment an unscrupulous and asinine sudden
reaction to any abusive and derogatory language; that aspect too require
further inquiry--Bail petition allowed. [Para
5 & 7] A & B
2022 SCMR 1555, 2020
SCMR 1486, 2004 PCr.LJ 962 &
2021 SCMR 1295.
M/s. Iftikhar Ahmed Langove and Jam Saka Dashti,
Advocates, for Applicant.
Mr. Muhammad Akram Shah, Advocate for Complainant.
Ms. Robina Taseen, State Counsel for State.
Date of hearing: 21.9.2022.
Order
The applicant has sought post-arrest bail as he is arrested in
pursuance of FIR No. 83/2022 which was lodged at PS Quaid Abad District Quetta
on 19.05.2022 by Syed Akhtar Hussain (complainant) u/S. 324, PPC.
2. The backdrop of this post-arrest bail application is: the
applicant had initially obtained pre-arrest bail from the Court rt of learned
Additional Sessions Judge-X, Quetta (“trial Court”) which was confirmed vide
order dated 02.06.2022. The complainant had assailed the said order before
this Court by filing Criminal Bail Cancellation Application No. 286/2022 which
was allowed vide order dated 15.08.2022 and bail granted to the
applicant was recalled. Thereafter, the applicant was arrested and after
investigation he was remanded to judicial custody but till date no progress has
been made in the trial as not a single witness has yet been examined by the
trial Court. Meanwhile, the applicant filed post-arrest bail application before
the trial Court which was dismissed vide order dated 08.09.2022 (“impugned
order”), hence this application.
3. Facts necessary for consideration are that on 19.05.2022,
the complainant reported that he was going to drop his friend Ali Akbar at
Alamdar Road Quetta when at about 03:00 pm, the accused/applicant stopped him
and started scuffling with him. The people intervened and got him freed. The
accused/applicant then ran towards his car and brought pistol and fired at him.
The bullet hit his left leg due to which he fell down. According to
complainant, people present at the spot shifted him to hospital. Consequently,
the aforesaid FIR was lodged against the accused/applicant. After
investigation, report u/S. 173, Cr.P.C. was submitted against the
accused/applicant and the case is pending trial, as mentioned above.
4. Mr. Iftikhar Ahmed Langove, learned counsel appearing on
behalf of the applicant contended that the Applicant, after his arrest, has
undergone extensive investigation but nothing has been recovered from him which
could connect him with the commission of alleged offence; since, allegedly role
of causing only one firearm injury has been attributed to the applicant,
therefore intention to murder is missing in this case and Section 324, PPC is
not attracted. Learned counsel further submitted that in view of non-obstante
clause provided u/S. 337-N(2), PPC, punishment of Tazir is not attracted in the
facts and circumstances of the case, therefore the incarceration of applicant
is without any legal justification and against the relevant provisions of
Pakistan Penal Code. While concluding his arguments, learned counsel emphasized
that considering the facts and circumstances mentioned in the FIR, intention to
kill the complainant is missing, and this question can only be decided by the
trial Court, after considering the evidence after complete trial, therefore a
case of further inquiry within the ambit of Section 497(2), Cr.P.C. is made out
in favour of the applicant. Learned counsel relied upon the cases titled as Muhammad
Faisal v. The State,[1]
Akhtar Ullah v. The State,[2]
Mukaram v. The State,[3]
Jahanzeb v. The State,[4]
Muhammad Idress v. The State,[5]
Muhammad Idress v. The State,[6]
Azmat Khan alias Jalil v. The State, [7]
Zahid alias Zahdi v. The State[8]
and Shahid Raziq alias Shahid v. The State.[9]
Conversely, Mr. Muhammad Akram Shah, learned counsel appearing
on behalf of the complainant strongly opposed the request of the applicant for
grant of post-arrest bail and contended that sufficient material is available
on record in the shape of medical and oral evidence which proves that the
applicant with the intention to kill the complainant had fired at him. Learned
counsel further stated that since the offence committed, falls within the
prohibitory clause of Section 497, Cr.P.C., therefore, the applicant is not
entitled for grant of post-arrest bail. While concluding his arguments, learned
counsel submitted that this Court has already cancelled pre-arrest bail granted
to the applicant by the trial Court, so in such view of the matter, there is no
new ground available, therefore the application merits dismissal. Learned
counsel relied upon the cases titled as Shegab Muhammad v. State Mir Hassan
v. State,[10]
Jumman alias Jammoo v. The State[11]
and Liaqat Ali v. The State.[12]
Ms. Robina Taseen, learned State Counsel appearing on behalf of
the State also adopted the arguments of learned counsel for the complainant and
opposed the request of applicant for grant of post-arrest bail.
Arguments heard and with the able assistance of learned counsel
for the parties, record was perused.
5. There is no cavil to the proposition that in criminal cases
each case has to be examined, analyzed and assessed on its own facts and
attending circumstances. Therefore no stringent rule can be observed while
exercising the Jurisdiction in criminal cases particularly vis-à-vis bail
matters Grant of bail is a discretionary relief, however, it is of paramount importance
that exercise of discretion is structured upon recognized judicial principles
of criminal jurisprudence. The tentative assessment of available material is
required at bail stage but the merits of the case can also be touched[13]
and if any doubt is observed, the benefit of doubt[14]
can be extended to accused even at bail stage.
6. The pre-arrest bail granted to the applicant by the trial
Court was recalled by this Court vide order dated 15.08.2022 considering
the request of the State Counsel that the investigation had not been completed
and the applicant is required for the purpose of investigation; in such view of
the matter, while distinguishing the grounds of pre-arrest bail and post-arrest
bail, the pre-arrest bail granted to the applicant was recalled and reliance in
this regard was placed in the case of Muhammad Ismail v. The State,[15]
the relevant excerpt is reproduced:
It goes without
saying that an accused of a cognizable offence scheduled as non-bailable can
only claim protection of anticipatory bail by reasonably demonstrating his
intended arrest being contemplated by considerations mala fide and sinister,
designed to abuse process of law. It is a judicial protection rooted into
equity, whereas an accused in custody after completion of investigation can be
released on bail on the touchstone of consideration statutorily enumerated in
subsection (2) of Section 497 of the Code of Criminal Procedure, 1898, these
two have no parallels”
Emphasis provided)
In order to get the investigation
completed, the pre-arrest bail granted to the applicant was recalled. The
applicant, as mentioned above, was arrested and interrogated and now for
approximately more than one month he is behind the bars. The trial has not yet
been commenced. It has been informed by learned counsel for the complainant
that the injured/complainant is at Karachi and still under treatment, so there
is likelihood of protraction of the trial and the incarceration of applicant
would not serve any purpose. Reliance in this regard is being placed upon the
case titled as Saeed Yousaf v. The State.[16]
7. Prima facie, allegedly one shot was fired at
complainant that too at non-vital part. Tentative assessment of the material
available on record transpires that ingredient, necessary for murderous attempt
on the part of the applicant require further probe. Though pointing out the
pistol and pressing the trigger manifests the intention but under what circumstances
that act was committed that too would require careful analysis by the trial
Court, as to whether, it was an intentional act or just at the spur of the
moment an unscrupulous and asinine sudden reaction to any abusive and
derogatory language; that aspect too require further inquiry.
8. The learned trial Court while dismissing the post-arrest
bail of the applicant has not considered the attending circumstances of the
case and used such language which amounts to final verdict against the
applicant, time-honored principle, in this regard, has always been that in
order to secure the ends of justice the Courts at bail stage should always
resort to tentative assessment, otherwise trial would become exercise in
futility.
In view of the above, the impugned order dated 08.09.2022
passed by learned Additional Sessions Judge-X, Quetta is set aside and the
applicant is admitted to post-arrest bail subject to furnishing solvent surety
in the sum of Rs. 200,000/-(Rupees two hundred thousand only) and PR bond of the
like amount to the satisfaction of Additional Registrar of this Court.
The observations made hereinabove are purely tentative fin,
nature and same shall not affect merits of the case pending trial, which has to
be decided on its own merits.
(A.A.K.) Bail petition allowed
[1]. 2020 SCMR 971.
[2]. 2021 SCMR 1287.
[3]. 2020 SCMR 956.
[4]. 2021 SCMR 63.
[5]. 2021 MLD 877.
[6]. 2021 MLD 877.
[7]. 2018 YLR Note 205.
[8]. 2017 YLR 1274.
[9]. 2012 PCr.LJ 1560.
[10]. 2020 SCMR 1486.
[11]. 2012 MLD 377.
[12]. 2003 YLR 2131.
[13]. 2004 PCr.LJ 962.
[14]. 2021 SCMR 130.
[15]. 2022 SCMR 1555.
[16]. 2021 SCMR 1295.