2007 PLP 1785 (YLR)

Laws Cited

Representation

• Ch. Shahid Pervaiz Kahloon for Petitioners.
• ----S. 498--Penal Code (XLV of 1860), S.324---Bail before arrest, refusal of---.F.I.R. having been lodged with promptitude, no time was left for complainant for consultation---Accused, in circumstances could not have been falsely involved in the case, particularly as the occurrence was a day time occurrence and same had been witnessed by two Advocates, who had got their statements recorded under S.161, Cr. P. C. implicating accused with the commission of offence---Accused were nominated in the F.I.R. and specific role of firing at complainant had been ascribed to them, which was supported by the recovery of five empties of .30 bore pistol from the spot on the date of occurrence---Car in which complainant was riding at the time of occurrence, was also taken into possession by the police---Accused failed to appear before the Court, on the date when this application for confirmation of bail was fixed---Such conduct of accused had further disentitled them to grant of extraordinary concession of pre-arrest bail---No mala fide had been alleged by accused against complainant or police for their false involvement in the case---Opinion of the police, was not binding on the court, particularly in the case which was not based on any tangible material---Prima facie the offence under S.324, P.P.C. was attracted to the case of accused which was punishable with a sentence of 10 years, which was hit by prohibitory clause of S.497, Cr.P.C.---Accused having failed to make out a case for grant of extraordinary concession of pre-arrest bail, petition for bail was dismissed.
• 4. The learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant contended that the petitioners were named in the F.I.R. and specific role of firing with their respective weapons on the complainant was assigned to them; that the F.I.R. was lodged promptly, hence, false involvement of the petitioners was ruled out; that it was a day time occurrence, hence, there was no question of mistaken identity; that recovery of fire-arms had yet to be effected from the petitioner who had not joined the investigation; that the petitioners did not appear before the learned Additional Sessions Judge at time of confirmation of their ad interim bail in order to approach this Court, hence, in view of the conduct of the petitioners, they were not entitled to the extraordinary concession of pre-arrest bail; that five empties of .30 bore pistol had been recovered from the spot by the police; that the opinion of the Investigation Officer was not binding on the Court particularly as not only empties were recovered from the spot but two witnesses who were Advocates had witnessed the occurrence, had appeared before the Investigating Officer and had got their statements recorded under section 161, Cr.P.C. that Qari Imtiaz-ul-Haq, whose affidavit had been relied upon by the petitioner's side, had also given an affidavit in favour of the complainant's side, hence, the same was of no consequence; that no mala fides had been alleged against the complainant or the police for false involvement of the petitioners in the case; and lastly that the offence under section 324, P.P.C. was fully made out against the petitioners which was hit by the prohibitory clause of section 497, Cr.P.C., hence the petitioners were not entitled to the concession of bail.
• 6. The F.I.R. was lodged with promptitude as such, there was no time for the complainant for consultation, hence, the petitioners could not have been falsely involved in the case particularly as the occurrence was a day light occurrence and the same had been witnessed by two Advocates who had got their statements recorded under section 161, Cr.P.C. implicating the petitioners with the commission of offence. The petitioners are nominated in the F.I.R. and specific role of firing at the complainant has been ascribed to them which is supported by the recovery of five empties of .30 bore pistol from the spot on the date of occurrence. The car in which the complainant was riding at the time of occurrence was also taken into possession by the police, which showed visible signs of damage with fire-arms. This further connects the petitioners with the prosecution case. A perusal of the orders of the learned Additional Sessions Judge reveals that when the application was fixed for confirmation of bail the petitioners failed to appear before the Court as such, the petition was dismissed. The conduct of the petitioners before the learned Additional Sessions Judge, further disentitles them to the grant of extraordinary concession of pre-arrest bail. No mala fides have been alleged by the petitioners against the complainant or the police for their false involvement in the case. Insofar as the affidavit given by Qari Imtiaz-ul-Haq is conferred it cannot be relied upon as he has given another affidavit in support of the prosecution case. The opinion of the police is not binding on he Court particularly in the instant case as the same is not based on any tangible material. Prima facie the offence under section 324, P.P.C. is attracted to the case of the petitioners which is punishable with a sentence of 10 years, hence the same is hit by prohibitory clause of section 497, Cr.P.C.

Headnotes / Summary

Judgment & Decree