1994 P Cr (PLP)

Ch. Muhammad Saeed Sabir and S.M. Saqlain Jafferi for Respondents. Date of hearing: 28th October, 1992. Through this petition under section 497(5), Cr.P.C. the petitioner seeks cancellation of bail granted to respondents Nos.l to 4 vide order, dated 23-10-1991 passed by Pirzada Ata Mohy-ud-Din, Additional Sessions Judge, Lahore 'in case F.I.R. No.272/91, dated 8-9-1991 under sections 336/ 337(2)(a)(c), 337-E(a) and 506, P.P.C. Police Station Islampura, Lahore.

2. According to the F.I.R. the petitioner was present outside the Court of Mr. Muhammad Aslam Bhatti, Civil Judge/Rent Controller, Lahore on 8-9-1991 in connection with an ejectment petition pending against him filed by respondent N6.1 when all the respondents attacked the petitioner and gave kicks and fist blows to the petitioner who received various injuries on his face and other parts of the body. He immediately brought this fact to the notice of the learned Civil Judge who directed the police to register the case. Initially the case was registered under section 506/34, P.P.C. Later on, on the directions of the superior Police Officers on the basis of the medical report the offence under sections 336, 337(2), (a) (c), 337-E(a), P.P.C. were also added.

3. The learned counsel for the petitioner vehemently contended that the learned Additional Sessions Judge, Lahore vide impugned order confirmed pre-arrest bail of respondents Nos.l to 4 without complying with the formalities laid down by their Lordships of the Supreme Court in P L D 1982 SC 83 which has resulted into miscarriage of justice. He next contended that respondents Nos.l to 4 are desperate persons as respondent No.l alongwith his sons followed the complainant/petitioner to the Court of the learned Civil Judge and therefrom his possession unlicensed pistol/revolver was recovered and a separate case was registered against respondent No.l. The pre-arrest bail granting order has materially affected the investigation of this case. Even while recording the F.I.R. the police did not take into consideration the medico-legal report of the petitioner and only recorded the F.I.R. under section 506/34, P.P.C.

4. The learned counsel for the State has supported this application for cancellation of bail. The learned counsel for respondents Nos.l to 4 has raised two preliminary objections, one, is that the parties have arrived at a compromise as is apparent from the photo copy of compromise deed placed on the record and the petitioner has not approached this Court with clean hands and the second is that the matter was pending before the Magistrate and the petitioner should not have invoked the jurisdiction of this Court.

5. I have heard the learned counsel for the parties and perused the record.

6. The medico-legal report placed on the record reveals various offences allegedly committed by respondents Nos.l to 4 in the F.I.R. which was lodged with great promptitude and the names of respondents Nos.l to 4 are mentioned therein which completely eliminates the possibility of malicious prosecution and false implication and the pre-arrest bail granting order has resulted into miscarriage of justice as the proper investigation could not be conducted by the police in view of this order which was passed in haste. Even when the matter was pending before the learned Ilaqa Magistrate who gave 4/5 days on a preliminary hearing of after-arrest bail application. Thereafter when the new offences were added on 30-9-1991, respondents Nos.l to 4 got their pre-arrest bail vide the impugned order, hence the objection of the learned counsel for respondents Nos.l to 4 is not well-founded that this Court has got no jurisdiction to entertain this petition at this stage. With respect to the first objection referred to above that the parties have arrived at a compromise, the respondents Nos.l to 4 have failed to produce the complainant in this Court as directed by this Court vide order, dated 6-10-1992. The learned counsel appearing for the petitioner has categorically denied the execution of any compromise. In the absence of the execution of the document, this Court cannot look into the compromise deed unless it is proved in accordance with law. On merits, I find, the offences allegedly committed by respondents Nos.l to 4 fall within the prohibitory clause and the learned Additional Sessions Judge, Lahore vide the impugned order without discussing the conditions laid down by their Lordships of the Supreme Court in P L D A 1982 SC 83, in haste passed the impugned order which has materially affected the investigation and has caused irreparable loss to the prosecution. Even the bail granting order is contrary to the record as the learned Additional Sessions Judge while granting bail has extensively discussed the evidence of the prosecution to come to this conclusion that there is no scope of conviction in this case which is not permissible at the bail stage. A perusal of the police file shows that the complainant's version is being supported by the eye-witnesses as well as by the medical evidence brought on the record. I do not want to enter into the discussion of the prosecution evidence. Suffice it to say, there exist reasonable grounds to believe at this stage that the case is not an outcome of any malice and respondents Nos.1 to 4 are not being prosecuted for any A ulterior motive, hence there is no justification for the learned Additional Sessions Judge to enlarge respondents Nos.l to 4 on pre-arrest bail in offences, some of which are of serious in nature. Even the conduct of respondents Nos.l to 4 prima facie disentitles them to pre-arrest bail as they chased the petitioner up to the Court of learned Civil Judge while he was holding the Court and a pistol/revolver was recovered from respondent No.l which shows that they are of desperate nature and character.

5. The upshot of the above discussion is that the impugned order is not sustainable in the eye of law, hence it is set aside. Respondents Nos.l to 4 8 should surrender to their bail bonds and they shall be taken into custody and be sent to jail as undertrial prisoners in the case referred to above. N.H.Q./M-1649/L Bail cancelled.