2022 PLP 1424 (SCMR)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 04.02.2022 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 270/2021 dated 20.08.2021 under sections 324/452/ 337-L(2)/134, P.P.C. at Police Station City Lala Musa, Gujrat, in the interest of safe administration of criminal justice.

2. Briefly the allegation against the petitioner is that he trespassed into the house of the complainant while armed with rifle and tried to make straight fire on the complainant party, however, he was intercepted by the complainant and barrel of the gun was uplifted, as a consequence the complainant remained unharmed. The incident attracted people from the vicinity and as such the accused fled away from the place while exerting threats. The motive behind the occurrence is undisclosed. The petitioner filed a petition for bail before arrest which was declined by the learned Additional Sessions Judge, Kharian vide order dated 30.11.2020. The order of the learned Additional Sessions Judge, Kharian was challenged before the High Court which too met the same fate vide impugned order dated. 04.02.2022. Hence the instant petition.

3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances of this case due to male fides of the complainant in connivance with local police. Contends that there is dispute of property in between the parties and civil litigation is pending adjudication. Contends that the lodging of the instant case by the complainant is an attempt to pressurize the petitioner's side. Contends that the petitioner is the owner of half of the disputed estate since 1964, therefore, possibility of false implication to usurp the property under the garb of alleged criminal case cannot be ruled out. Contends that due to alleged fire shots made by the petitioner nobody was harmed, therefore, section 324, P.P.C. does not attract in the instant case. Contends that as far as the allegation of trespassing into the house is concerned, it is totally against the actual facts and circumstances because the petitioner was called in the said house by Chaudhry Tanvir Ashraf Qaira, the contestant of the civil suit for negotiations/compromise between the parties. Contends that the petitioner's son, who has also been ascribed the similar role, has already been granted bail after arrest by the court of competent jurisdiction, therefore, the petitioner deserves the concession of pre-arrest bail.

4. On the other hand, learned Law officer assisted by learned counsel for the complainant argued that the petitioner has specifically been nominated in the crime report with a specific allegation of attempting to take life of the complainant, therefore, he does not deserve any leniency by this Court.

5. We have heard learned counsel for the parties at some length and have perused the record with their able assistance. As per the contents of .the crime report, the allegation against the petitioner is that he trespassed into the house of the complainant while armed with rifle and tried to make straight fire upon the complainant, however, the complainant resisted the assault by uplifting the muzzle of the gun. Admittedly, nobody received any injury during the incident. In an attempt to murder case falling within the ambit of section 324, P.P.C., the nature of the act done, the intention of the offender and the circumstances leading to the occurrence are the essential ingredients, which need to be probed into to determine the guilt or otherwise of an accused. In the present case, it is the stance of the petitioner that he was called by one Ch. Tanveer Ashraf Qaira to his house to settle the old standing civil litigation where the occurrence took place. The very FIR shows that petitioner was not armed with any firearm and in-fact his son was having a rifle, which the petitioner allegedly took later on. According to the petitioner, he had gone to the house for negotiations to settle the civil dispute. We have been informed that petitioner's son, who was allegedly carrying the rifle has been granted post arrest bail by the learned Trial Court, which has been challenged by the complainant without any result so far. In the case reported as Muhammad Ramzan v. Zafarullah (1986 SCMR 1380), the respondent was allowed pre-arrest bail by the learned High Court while the other similarly placed co-accused were granted bail after arrest. The complainant did not challenge the grant of bail after arrest to the similarly placed co-accused and sought cancellation of pre-arrest bail granted to the respondent before this Court by filing a criminal petition but this Court dismissed the petition for cancellation of bail by holding that "no useful purpose would be served if the bail of Zafar Ullah Khan respondent is cancelled on any technical ground because after arrest he would again be allowed bail on the ground that similarly placed other accused are already on bail." We are of the considered view that the case of the petitioner is even at better footing as compared to the case of his son, the co-accused, who has already been granted bail by the court of competent jurisdiction. This Court in the salutary judgment of Miran Bux v. The State (PLD 1989 SC 347) rendered by a five member bench has broadened the scope of pre-arrest bail and held that while granting extraordinary relief of pre-arrest bail, merits of the case can be touched upon. Keeping in view the facts and circumstances of the present, the possibility of false implication to gain benefits in the civil litigation cannot be ruled out. It is a settled law that liberty of a person is a precious right; which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same cannot be taken away on bald allegations. In these circumstances, the petitioner has made out a case for bail as his case squarely falls within the purview of section 497(2), Cr.P.C. entitling for further inquiry into his guilt.

6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order dated 04.02.2022. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.500,000/- with one surety in the like amount to the satisfaction of learned Trial Court. MWA/J-4/SC Bail granted.