2019 PLP 1478 (YLR)

FAROOQ HAIDER, J.

At the very outset, learned counsel for the petitioners submits that since arrest of petitioner No.2 Allah Ditta and petitioner No.4 Shahbaz is not required by the police, therefore, he wishes to withdraw instant bail to their extent, which fact has been confirmed by the learned law officer as well as police official, present in Court. Hence, this petition is dismissed as withdrawn to the extent of petitioners Nos. 2 and 4.

2. Through this petition, petitioners Imran and Manzoor Hussain seek pre-arrest bail in case arising out of FIR No.704/2018 dated 15.09.2018, under sections 337-A(i)F(v)L(2), 148, 149, 354, 452, P.P.C. registered at Police Station Sadder, District Okara.

3. After hearing learned counsel for the petitioners and going through the record with the help of learned law officer it has been noticed that occurrence took place on 08.09.2018 and FIR was recorded on 15.09.2018 with the delay of 07 days for which no plausible reason could be forwarded; Manzoor Hussain petitioner and his son Muhammad Iqbal received injuries during the occurrence, they both were got medically examined on the same day by police after preparing their injury statements vide Rapat No.7 through Imran-ul-Haq 1860/C constable and their medico-legal certificates bearing Nos.2250 and 2251 dated 08.09.2018 were also received by the Police on the same day but inspite of this, police by joining hands with the complainant party suppressed said injuries, which is sufficient to establish mala fide intention on part of prosecution; so prosecution has not come with clean hands; ultimately police registered cross version on the application of Manzoor Hussain (petitioner) against complainant party; although during investigation police did not verify the cross version yet it is case of two versions and it will be determined by the learned trial Court after recording evidence that which party is aggressor, however, this scenario ipso facto brings the case of the petitioners within the ambit of further inquiry i.e. 497(2) Cr.P.C. It has also been observed that Imran petitioner No.1 is alleged to have given blow of spade/phorra at right knee of Riaz but said allegation has not been supported by medical evidence because according to medico-legal certificate of Riaz no such injury is available there; Manzoor Hussain petitioner No.3 is alleged to have caused injury to right knee of Afzal Bibi, which is Ghayer Jaifah Daimah attracting offence under section 337-F(i), which is bailable; main role of causing injury to Riaz and Abdul Kareem is attributed to Ikram co-accused of the petitioners, which attracted application of section 337-F(v), P.P.C. also; however, Ikram co-accused has been admitted to post arrest bail vide order dated 22.10.2018 passed by learned Additional Sessions Judge, Okara; similarly, co-accused Muhammad Iqbal has also been admitted to post arrest bail by learned trial Court vide order dated 09.10.2018. Case of both present petitioners i.e. Imran and Manzoor Hussain is at lower pedestal as compared to co-accused Ikram mentioned above. Occurrence took place on 08.09.2018 and now almost more than four and half months have passed, hence, no useful purpose would be served from recovery of any alleged sota or phorra because blood disintegrates after about three weeks and when recovery cannot advance case of prosecution then pre-arrest bail cannot be refused merely for the purpose of recovery. Reliance is placed upon the case of "Malik Muhammad Aslam v. The State and others" (2014 SCMR 1349), relevant portion is being reproduced for ready reference:- "The Investigating Officer has confirmed the fact that the petitioner has already joined the investigation but he has maintained that a hatchet is yet to be recovered from the petitioner's custody and, thus, the petitioner's physical custody is required by him for the said purpose. In this connection we have noticed that the occurrence in this case had taken place on 16.10.2012, i.e. exactly three months ago, during which period any blood available on the petitioner's hatchet must have disintegrated leaving the proposed recovery to be of little legal consequence. In this view of the matter we have not felt persuaded to deprive the petitioner of his liberty merely to facilitate the investigating officer to go through a formality which formality is not likely to serve any beneficial purpose for the prosecution. In this backdrop the intended arrest of the petitioner by the local police has not been found by us to be above board." Further guidance has been obtained in this regard from the dictum laid down by august Supreme Court of Pakistan in the case of "Faisal Muhammad v. The State (2016 SCMR 2138); relevant portion is reproduced:-- "It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks." It would be buffoonery to send present petitioners in jail and then to bring them out after some days on post arrest bail. Guidance has been sought from the golden words used in this context in the case of "Muhammad Javaid v. The State" (1999 Cr.LJ 749), the relevant portion is being reproduced for ready reference:- "Thus, it shall have a colour of ludicrousness if he is sent behind the bars for a few days by dismissing his application for pre-arrest bail so as to enable him to come out of jail after a few days on post-arrest bail. I for one would not like to be a party to such a mockery of the system." Punishment of alleged offences does not fall within the ambit of prohibitory clause.

4. In view of the above, instant application for pre-arrest bail is allowed, ad-interim pre-arrest bail already granted to the petitioners (Imran and Manzoor Hussain) is confirmed subject to their furnishing fresh bail bonds in the sum of Rs. 1,00,000/- each with one surety in the like amount to the satisfaction of learned Trial Court. However, it is clarified that the observations mentioned above are only tentative in nature and strictly confined to the disposal of instant petition for bail. MQ/I-3/L Bail confirmed.