1994 P Cr (PLP)

Date of hearing: 21st December, 1993. The petitioner is one of the accused in a case registered vide F.I.R. No.375/93, dated 25-8-1993 under section 324 of Ordinance VII of 1990, 337-F, Qisas and Diyat Ordinance and section 148/149, P.P.C. at Police Station Division, Kasur.

2. The allegation against the petitioner, in brief, was to the effect that he had injured Muhammad Afzal P.W., brother of the complainant at the right ankle by firing at him with a .12 bore gun.

3. The learned counsel for the petitioner, the State and the complainant, appearing in the case with the permission of the Court, were heard at length in respect of the contentions raised herein.

4. It was confirmed on behalf of the State, as contended herein, that the petitioner has been declared innocent pursuant to the investigation conducted by the police. In this respect, it was pointed out that the presence of the petitioner at the place of occurrence was not established. It was further confirmed that the petitioner is neither a previous convict nor a hardened criminal. Therefore, it is hereby observed that the interim pre-arrest bail allowed to the petitioner, vide order, dated 7-12-1993, deserves to be confirmed.

5. However, at this stage, the learned counsel for the complainant argued that the petitioner is not entitled to the extraordinary relief of pre-arrest bail, as he had suppressed material facts from this Court. In this respect pointed out that after the dismissal of his pre-arrest bail application by the learned lower Court vide order, dated 11-11-1993, on merits, though in mis-absence, as he had submitted a medical certificate on the basis of which the said lower Court had exempted his presence, the petitioner had filed a second pre-arrest bail petition before the lower Court falsely stating that his earlier pre-arrest bail petition was dismissed in default because of his absence. In this respect sought- strength from Shahadat Ali v. Mubarik Shah and another P L D 1986 SC 347, wherein the bail allowed to the respondent/accused by the Honourable High Court was cancelled on the ground that he had suppressed material facts from the Court regarding his various bail petitions before different lower Courts in his repeated bail petitions and had further suppressed the same facts by not disclosing it to the Honourable High Court.

6. The Court is constrained to observe that the authority relied upon is not applicable to the facts and circumstances of the instant case. In this respect, it may be pointed out that the second petition for pre-arrest bail was moved on behalf of the petitioner before the learned lower Court by stating that his earlier pre-arrest bail petition was dismissed in default for his non-appearance, although the earlier pre-arrest bail petition was disposed of by the learned lower Court on merits after having accepted his medical certificate and after having recorded the exemption in respect of his presence before the said Court. It may be further pointed out that a perusal of the second pre-arrest bail petition filed on behalf of the petitioner had duly disclosed the name of the learned Additional Sessions Judge, Abdur Razzaq Bhatti, who had dismissed his earlier pre-arrest bail petition, vide order, dated 11-11-1993; and it was further stated therein that the petitioner had not been able to appear before the said Court due to sickness and that a medical certificate to that effect had been submitted to the learned Court. Further notice has been taken of the explanation of the petitioner, present before the Court, to the effect that he was under the general impression that his bail petition had been dismissed for non-appearance and that, therefore, under instructions, he had filed the second pre-arrest bail petition. At this stage, the learned counsel for the complainant further pointed out that the petitioner had been guilty of further suppression of material facts by not disclosing his having filed the second pre-arrest bail petition, which was dismissed in default on 22-11-1993 before this Court. The petitioner's explanation for the same is that he had disclosed the entire information to his counsel, but was under the impression that the only order that was relevant in the instant pre-arrest bail petition, was the one which had dealt with his case on merits i.e. the order, dated 11-11-1993 and the same was duly annexed to the present petition.

7. The Court has taken notice of the omission by the petitioner as stated above, but taking notice of the fact that the explanation submitted by the petitioner in persons, is sufficient to repel the allegation of his having done so dishonestly or in a mala fide manner and further taking into consideration that even during the hearing of his first pre-arrest bail petition by the learned lower Court, the contentions raised on his behalf was to the effect that there was great deal of doubt regarding his presence at the place of occurrence therefore, while expressing strong disapproval of the conduct of the petitioner, the Court feels that the denial of the confirmation of pre-arrest bail allowed to the petitioner, shall amount to subjecting him to punishment, which is not warranted under the facts and circumstances of the instant case specially as no undue advantage has accrued to the petitioner as result of suppression of the above-stated facts.

8. Therefore, pursuant to the above discussions, interim pre-arrest bail allowed to the petitioner, vide order, dated 7-12-1993, is hereby confirmed.

9. The uncertified copies of the second petition for pre-arrest bail filed by the petitioner and the orders passed therein, dated ' 13-11-1993 and 22-11-1993, produced by the learned counsel for the complainant, are directed to, be placed on the record. N.H.Q./M-1479/L Interim bail confirmed.