PLJ 2025 SC (Cr.C.) 142
[Appellate Jurisdiction]
Present:
Yahya Afridi, CJ and Shahid Waheed, J.
MUHAMMAD
SAEED--Petitioner
versus
STATE thr. A.G. Islamabad and another--Respondents
Crl.
P.L.A. No. 588 of 2024, decided on 3.2.2025.
(Against
the order dated 20.05.2024 passed by the Islamabad High Court, Islamabad in
Criminal Misc. No. 840-B of 2024)
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 497(5) & 498--Pakistan Penal Code, 1860 (XLV of
1860), Ss. 324 & 337-F(ii)--Arms Ordinance, 1965 ( of 1965), S. 13(d)--Pre-arrest
bail was granted to respondent-accused--Cancellation of bail--Dismissal of--The
respondent-accused allegedly hurled abuses at them and, with intention to kill,
fired at them--One of shots struck on his left leg, causing him to sustain an
injury--High Court took note of absence of any crime empty recovered from place
of occurrence--There was no dispute nothing remained to be recovered from
respondent-accused, as weapon allegedly used in commission of offence had
already been taken into possession by police during investigation--Stance of
respondent-accused narrated in cross-version, observation to be in accordance
with weight of material available on record--The prosecution has at this stage
failed to present sufficient incriminating material to connect
respondent-accused with commission of alleged offence--No sufficient
incriminating material to connect him to offence, grant of pre-arrest bail was
justified in facts and circumstances of case--Second bail petition to be not
competent is misconceived, as it neither precluded respondent-accused from
filing a fresh bail petition before a higher forum nor barred High Court from
independently assessing case and granting relief where warranted--The petition
for leave to appeal is found meritless; same is therefore dismissed and leave
to appeal declined. [Pp. 143 & 144] A,
B, C, D, E, F, G
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Mala fide--Mala fide cannot always be
proved through direct evidence and is often to be inferred from facts and circumstances
of case. [P.
144] E
PLD
2021 SC 708 ref.
Mr. Riaz Hanif Rahi, ASC and Syed Rifaqat Hussain
Shah, AOR for Petitioner.
Ms. Chand Bibi, DPG, Islamabad, Mr. Kaleem Ullah,
SHO and Mansab Dar, SI/Investigating Officer for State.
Date of hearing: 3.2.2025.
Order
Yahya Afridi, CJ.--The petitioner-complainant seeks
leave to appeal against the order of the Islamabad High Court dated 20.05.2024 (“impugned
order”), whereby pre-arrest bail was granted to the respondent-accused in
case FIR No. 308, dated 28.03.2024, registered at Police Station Sangjani,
Islamabad, for the offences under Sections 324 and 337-F(ii)
of the Pakistan Penal Code, read with Section 13(d) of the Arms Ordinance.
2. According to the FIR, the occurrence
allegedly took place on 27.03.2024 at about 8:45 p.m. when Hasham Saeed and
Shahzad Saeed, sons of the petitioner-complainant, were on their way home. They
were intercepted by the respondent-accused, who was armed with a pistol. The
respondent-accused allegedly hurled abuses at them and, with the intention to
kill, fired at them. One of the shots struck Hasham Saeed on his left leg,
causing him to sustain an injury.
3. The learned counsel for the
petitioner-complainant contends that a nine years old child has been injured
and his rights have not been properly considered in the impugned order. He
further argues that the fact that the respondent-accused was armed with a
weapon at the time of the occurrence shows his intent to commit the crime.
Additionally, he submits that the impugned order has not taken into account the
essential requirements for the grant of pre-arrest bail, in particular the
element of mala fide on the part of the complainant party. He also
maintains that since the pre-arrest bail petition of the respondent-accused was
dismissed for non-prosecution and his second pre-arrest bail petition was held
not competent by the Sessions Court, the High Court ought not to have
entertained the bail petition of the respondent-accused.
4. After
hearing the learned counsel for the petitioner-complainant and the learned
Deputy Prosecutor-General, Islamabad and going through the record, we observe
that the High Court took note of the absence of any crime empty recovered from
the place of occurrence. The High Court also observed that there was no dispute
regarding the fact that nothing remained to be recovered from the
respondent-accused, as the weapon allegedly used in the commission of the
offence had already been taken into possession by the police during the
investigation. Further, the High Court observed that a tentative assessment of
the incriminating material, when considered alongside the stance of the
respondent-accused narrated in the cross-version, prima facie indicated that the case fell within the ambit of
further inquiry. We find this observation to be in accordance with the weight
of the material available on record and not contrary to it. The prosecution has
at this stage failed to present sufficient incriminating material to connect
the respondent-accused with the commission of the alleged offence.
5. As
regards the contention that mala fide was not properly considered, it is
important to note that mala fide cannot always be proved through direct
evidence and is often to be inferred from the facts and circumstances of the
case.[1]
Since the High Court found no reasonable grounds to justify the arrest of the
respondent-accused and no sufficient incriminating material to connect him to
the offence, the grant of pre-arrest bail was justified in the facts and
circumstances of the case.
6. The
argument that the High Court ought not to have entertained the bail petition
after the Sessions Court found the second bail petition to be not competent is
misconceived, as it neither precluded the respondent-accused from filing a
fresh bail petition before a higher forum nor barred the High Court from
independently assessing the case and granting relief where warranted.
7. The
learned counsel for the petitioner-complainant has not been able to show that
the impugned order is either perverse or against any settled principle of the
law of bail, warranting interference by this Court. The petition for leave to
appeal is found meritless; the same is therefore dismissed and leave to appeal
declined.
(A.A.K.) Appeal dismissed