2017 PLP 1724 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Criminal Miscellaneous Applications Nos. 157-L and 161-L of 2017. These miscellaneous applications are allowed and the documents appended therewith are permitted to be brought on the record of the main petition. Disposed of. Criminal Petition No. 254-L of 2017

2. Through this petition Shahbaz Ahmed Chaudhry and Abdul Rashid petitioners have sought leave to appeal against the order dated 09.02.2017 passed by a learned Judge-in-Chamber of the Lahore High Court, Lahore in Criminal Miscellaneous No.16693-B of 2016 whereby pre-arrest bail was refused to them in case FIR No. 1424 registered at Police Station Sabzazar, Lahore on 18.10.2016 in respect of offences under sections 427, 448, 511, 379, 356 and 506, P.P.C.

3. After hearing the learned counsel for the parties and going through the record we have observed that the FIR in this case had been lodged with a delay of eleven days despite the fact that the local police had statedly become involved in the issue on the very day of occurrence. In the FIR collective allegations have been leveled against about a dozen persons and no individual role has been attributed to the present petitioners. All the offences involved in this case other than those under sections 356 and 379, P.P.C. are bailable whereas the offences under sections 356 and 379, P.P.C. are punishable with imprisonment for two years and three years respectively. The learned counsel for the petitioners has drawn our attention towards parawise comments submitted by the local police before an Additional Sessions Judge, Lahore in connection with a petition filed by the complainant under section 22-A(6), Cr.P.C. and in those comments the local police had categorically informed the learned Additional Sessions Judge that at the time of the present occurrence the present petitioners and their co-accused were not armed with any weapon and no property belonging to the complainant had been snatched away. The Superintendent of Police (Investigation), Saddar Division, Lahore has appeared before the Court in person and has confirmed the above mentioned aspect of this case. The record produced before us shows that on 07.10.2016, the day of occurrence, an order passed by a learned Special Judge (Rent), Lahore regarding ejectment of the tenant residing in the house in issue existed with full force and the learned Special Judge had already directed a Bailiff of his court to execute the order of ejectment against the tenant. The report of the Bailiff dated 07.10.2016 shows that the Bailiff had accompanied the present petitioners to the place of occurrence to carry out the order passed by the learned Special Judge and before doing that he had approached the local police for assistance by police personnel which assistance was not provided as sufficient number of personnel were not available at the police station on that date. Be that as it may the fact remains that the occurrence in issue had taken place when a Bailiff of a Court was executing an ejectment order lawfully passed and till that date that order of ejectment still held the field although statedly it was suspended later on. The above mentioned parawise comments submitted by the local police before the learned Additional Sessions Judge had confirmed that at least some part of the FIR lodged in this case was not the whole truth and a lot of exaggeration had prima facie been resorted to by the complainant at the time of lodging of the FIR. The petitioners have already joined the investigation and nothing is to be recovered from their custody at this juncture. In the backdrop of admitted litigation between the parties the assertion of the learned counsel for the petitioners regarding mala fide on the part of the complainant party cannot be brushed aside at this stage.

4. For what has been discussed above this petition is converted into an appeal and the same is allowed and ad interim pre-arrest bail already allowed to the petitioners by this Court vide order dated 14.03.2017 is hereby confirmed on the same terms. MWA/S-19/SC Bail confirmed.