2023 Y L R 658
[Balochistan]
Before Muhammad Aamir Nawaz Rana, J
Syed ALI AKHTAR ---Applicant
Versus
Syed MURTAZA and another ---Respondents
Criminal Bail Cancellation Application No. 286 of 2022, decided on 15th August, 2022.
Criminal Procedure Code (V of 1898) ---
----Ss. 497(5) & 498--- Penal Code (XLV of 1860), S. 324--- Cancellation of bail ---Attempt to
commit qatl -i-amd---Scope ---Complainant sought cancellation of pre -arrest bail granted to
accused in an FIR lodged under S. 324, P.P.C.---Accused was al leged to have caused a fire
arm injury resulting in distal femur fracture ---Prima facie, that version of complainant was
supported by Medico Legal Certificate; further, the footage of CCTV also supported the
version of the complainant --- Accused had pointe d pistol towards the complainant and
pressed the trigger; whether he had intention to kill or not was the question which could be determined by the Trial Court but prima facie, an act had been committed causing homicidal injury---Order passed by Trial Cour t was not sustainable, same was set aside and bail granted
to the accused was recalled, in circumstances.
Sheqab Muhammad v. The State 2020 SCMR 1486; Muhammad Nadeem v.
Muhammad Khurram Iqbal 2022 SCMR 1168 and Muhammad Ismail v. The State 2022 SCMR 707 rel.
Jahanzeb Khan v. Umer Zahid 2022 SCMR 726; Muhammad Baqir v. The State 2022
SCMR 363; Syed Hamad Raza v. The State 2022 SCMR 640; Abdul Jabbar v. Sardar Khan Rind 2020 YLR 1077; Azra Bibi v. The State 2017 PCr.LJ Note 96; Muhammad Idress v. The Stat e 2021 MLD 877; Meeran Bux v. The State PLD 1989 SC 347 and Samiullah v. Laiq
Zada 2020 SCMR 1115 ref.
Syed Ayaz Zahoor and Muhammad Akram Shah for Applicant.
Iftikhar Ahmed Langove and Jam Saka Dashti for Respondent No.1.
Fazal -ur-Rehman, State Counse l for the State.
Date of hearing: 4th August, 2022.
ORDER
MUHAMMAD AAMIR NAWAZ RANA, J. ---The respondent No.1 Syed Murtaza
son of Mir Hussain is nominated accused in FIR No.83/2022 lodged at Police Station
Quaidabad Quetta on 19.05.2022 on the complaint of applicant/ complainant Syed Ali Akhtar
son of Syed Sadiq for the offence punishable under section 324, P.P.C.
2. The accused (respondent No.1) had obtained pre -arrest bail by Additional Sessions
Judge -X, Quetta (hereinafter "the trial Court") which was confirmed vide order dated
02.06.2022 (hereinafter "the impugned order"). Same has been impugned by the applicant/complainant through this application under section 497(5), Cr.P.C.
3. Necessary facts are that on 19.05.2022, the applicant/complainant reported that he is a
student of 1st year; that on eventful day he was going to drop his friend namely Ali Akbar at Red Rose Marriage Hall near Masjid Wali Asar situated at Alamdar Road Quetta, when at about 03:00 pm the accused Syed Murtaza son of Mir Hussain, resident of Hazara Town,
stopped him and started scuffling with him. According to complainant, people intervened and got him freed; that the accused Syed Murtaza ran towards his car and brought pistol and fired at him and the bullet hit his left leg due to which he fell down; that people present at the spot
took him to the hospital.
4. Messrs Syed Ayaz Zahoor and Muhammad Akram Shah, Advocates appearing on
behalf of the applicant contented that FIR was promptly lodged in which accused (respondent No. 1) was directly nominated; that since incident took place in the bright daylight so there is no issue with regard to identity of the accused; that since accused had committed a non -
bailable offence and had attempted to cause fatal injury to the applica nt, therefore the trial
Court has committed error by entertaining the application for pre -arrest bail of the accused
under section 498, Cr.P.C. In this regard learned counsel for the applicant relied upon
Sheqab Muhammad v. The State 2020 SCMR 1486, Jahanz eb Khan v. Umer Zahid 2022
SCMR 726, Muhammad Baqir v. The State 2022 SCMR 363 and Syed Hamad Raza v. The State 2022 SCMR 640.
5. Mr. Fazal -ur-Rehman, learned State Counsel appearing on behalf of the State also
supported the arguments rendered by learned c ounsel for the applicant and stated that the
impugned order is not in accordance with law and same has been passed without any justification; that extra ordinary relief of bail before arrest has been granted to respondent No. 1, therefore the impugned orde r deserves to be recalled.
6. On the other hand, learned counsel for respondent No.1 refuted the allegations of the
applicant and contended that section 324, P.P.C. is not attracted considering the facts and circumstances of the instant case; that the alle ged bullet was not shot at the vital part; that
since respondent No.1 has been granted pre -arrest bail by the trial Court on merits, therefore
the scope of cancellation of bail under section 497(5), Cr.P.C. is entirely different as explained and dilated by this Court as well as by the Hon'ble Supreme Court. In this regard
learned counsel for respondent No.1 relied upon Abdul Jabbar v. Sardar Khan Rind 2020 YLR 1077, Azra Bibi v. The State 2017 PCr.LJ Note 96, Muhammad Idress v. The State 2021 MLD 877, Meera n Bux v. The State PLD 1989 SC 347 and Samiullah v. Laiq Zada
2020 SCMR 1115.
Arguments heard. Record perused with the assistance of learned counsel for the
parties.
7. The respondent No.1 is accused of causing fire arm injury resulting in distal femur
fracture. Prima facie, this version of the applicant is supported by Medico Legal Certificate
(MLC); further, the perusal of record reveals that the footage of CCTV, installed at the place of incident, also support the version of the applicant. The learned t rial Court has granted bail
before arrest under section 498, Cr.P.C. to respondent No.1 on the grounds which at pre -arrest
bail stage should have been avoided considering the judgments passed by the Hon'ble Supreme Court. Reliance in this regard is being p laced upon the case titled as Muhammad
Nadeem v. Muhammad Khurram Iqbal 2022 SCMR 1168, relevant portion whereof is reproduced herein below:
"------. It is by now well settled that protection of pre -arrest bail is essentially a
judicial protection to prot ect the innocent, being targeted through abuse ofprocess of
law for motives, oblique and sinister; it is neither a substitute for post arrest bail nor a treatment to be extended in every run of the mill criminal case. It is an option that warrants caution in its exercise, seemingly ignored by the High Court. Criminal Petition is converted into appeal and allowed; pre -arrest bail granted to the respondent
is cancelled".
Emphasis provided.
In the same manner, while distinguishing the parameters of bail after arrest and bail
before arrest, the Hon'ble Supreme Court, while dilating upon this difference, in the case titled as Muhammad Ismail v. The State 2022 SCMR 707 has observed:
"------. 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.
For effective administration of criminal justice, it is most important that prosecution
is allowed a meaningful opportunity to carry out and conclude the investigative process as apart from readily available evidence in the aftermaths of an incident it may lay hands upon incriminatory material that may possibly become available
pursuant to disclosures in custody; this has been grievously ignored. Similarly, an anticipated failure of prosecution, no matter how loudly clamoured, cannot be received to set its case at naught even before it is taken off".
8. Prima facie, tentative assessment of the available record manifests that the accused
pointed pistol towards the applicant and pressed the trigger; whether he had intention to kill or not is the question which can be determined by the trial Court but prima facie, an act has been committed causing homicidal injury. In this regard wisdom is obtained from the order passed by Hon'ble Supreme Court in the case titled as Sheqab Muhammad v. The State 2020
SCMR 1486, relevant portion whereof is reproduced herein bel ow:
"-------, murderous assault as defined in the section ibid draws no anatomical
distinction between vital or non- vital parts of human body. Once the triggered is
pressed and the victim is effectively targeted, "intention or knowledge" as
contemplated b y the section ibid is manifested; the course of a bullet is not controlled
or steered by assailant's choice nor can he claim any premium for a poor marksmanship".
9. In view of the judgments referred above and considering the facts and circumstances
of this case in which extra ordinary relief of pre -arrest bail has been granted to respondent
No. 1 probably on the grounds which are distinguishable from the recognized grounds of bail before arrest, therefore the order dated 02.06.2022 pass ed by Additional Sessions Judge -X,
Quetta is not sustainable, same is set aside and bail granted to respondent No. 1 is recalled.
The observations made herein -above are purely tentative in nature and same shall not
affect merits of the case pending trial.
SA/158/Bal. Bail cancelled.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.