27/02/2024
PLJ 2024 Cr.C. (Note) 49
[Lahore High Court, Multan Bench]
Present: Shakil Ahmad, J.
MUHAMMAD AYUB and another--Petitioners
versus
STATE and another--Respondents
Crl. Misc. No. 7043-B of 2023, decided on 8.11.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 498/498-A--Pakistan Penal Code, (XLV of 1860), S. 379--Pre-arrest bail--Tangible and direct evidence--Confirmation of--There is no possibility of availability of any direct evidence in such like cases and there is likelihood of recovery of stolen bricks from petitioners--No direct or indirect evidence whatsoever is available with the prosecution to link the petitioner with the alleged crime--No positive, tangible either direct or indirect evidence is available with the investigator to connect the accused--Mere bald allegation of theft is not sufficient for holding the petitioner liable for the commission of alleged crime--No details whatsoever have been given by the complainant that how he came to know that it were accused/petitioners who have committed the alleged crime--Mere allegation of theft in the incident without disclosing the source and the details as to how the complainant came to know that it were the petitioners who committed the theft, would not be sufficient to connect the petitioner with the commission of alleged crime--Apart from suspicion there is no tangible material available with the prosecution--No incriminating material is available with the prosecution to connect the petitioners--Possibility of false implication of petitioners in this case on the basis of malice and ulterior motive on the part of the complainant and police as well cannot be ruled out--Petition in hand is allowed and ad interim pre-arrest bail already granted to petitioners is confirmed.
[Para 3] A, B, C, D, E, F, G, H
2017 SCMR 2060; PLD 2018 SC 595; PLD 2005 Lahore 470; PLJ 2021 Cr.C 1553; 2017 SCMR 1249; PLD 2021 SC 708 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 54--Section 54, Cr.P.C. confers a wide power and, therefore, such power has to be construed, interpreted and defined strictly, check and limitation placed upon the powers of police officer under the provisions of section 54 of Cr.P.C. still can be inferred through the existence of reasonability and credibility of information or complaint made before the police officer. [Para 3] E
1993 PCr.LJ 91 ref.
Syed Imran Abbas Kazmi, Advocate for Petitioners.
Mr. Ashfaq Ahmad, Deputy Prosecutor General for State.
Rao Raheel Nadeem, Advocate for Complainant.
Date of hearing: 8.11.2023.
Order
After dismissal of his pre-arrest bail petition by learned Additional Sessions Judge, Multan vide order dated 27.09.2023, instant petition has been filed under Section 498 of the Code of Criminal Procedure, 1898 (Cr.P.C.) by Muhammad Ayub and Falak Sher petitioners seeking pre-arrest bail in case F.I.R. No. 1489 of 2023 dated 17.08.2023 registered at Police Station Basti Malook District Multan for the offence under Section 379 of the Pakistan Penal Code, 1860) (PPC).
2. Prosecution story, in precise terms, as per contents of the F.I.R. is that on 11.05.2023 bricks valuing Rs. 45,000/-belonging to the complainant were found to be stolen from his land and upon ascertainment it surfaced that accused/petitioners along their co-accused had committed theft of the bricks in the night of 10.05.2023.
3. Having heard learned counsel for the parties, learned Deputy Prosecutor General and upon tentative assessment of the record, it has been noticed that incident of larceny of bricks belonging to complainant took place on 10.05.2023, however, F.I.R. was got lodged on 17.08.2023 i.e. with the delay of more than three months. The delay in lodging of F.I.R. has not been plausibly explained. Learned Deputy Prosecutor General argued that since petitioners are named in the F.I.R. and recovery of bricks is to be effected from them, they are not entitled to the grant of extraordinary relief of pre-arrest bail. However, on query by this Court, learned DPG remained unable to point out any admissible and legal evidence collected by the Investigator during investigation to connect the petitioners with the commission of alleged crime. According to him, there is no possibility of availability of any direct evidence in such like cases and there is likelihood of recovery of stolen bricks from petitioners during investigation which may connect the petitioner with the commission of alleged crime. The argument of learned DPG that allegation of theft can hardly be proved through direct evidence in most of the cases appears to be tenable, however, it does not mean that prosecution would stand absolved from its duty of proving allegation of theft through other incriminating material. Therefore, remaining stance of learned DPG is not tenable in view of peculiar facts and circumstances of the instant case insofar as no direct or indirect evidence whatsoever is available with the prosecution to link the petitioner with the alleged crime. Person of an accused cannot be given in the custody of police for effecting any recovery where in the first place no positive, tangible either direct or indirect evidence is available with the investigator to connect the accused with the commission of crime falling within the purview of Section 379 of PPC. Reliance in this regard may safely be placed on case “Aamir Bashir and another v. The State and others” (2017 SCMR 2060) wherein somewhat similar sort of objection raised by Advocate General was repelled by the apex Court with the following observations:
“The plea of the Advocate General that the investigating agency has been deprived to interrogate both the petitioners for the recovery of the crime pistol and to collect further evidence after getting their custody, is not acceptable in the circumstances of the case. Moreover, this Court time and again has held that this could not be a ground for refusal of pre-arrest bail because the police has to use proper skills of investigation while interrogation inside the lockup of the police station or inside the police station would make a very little difference”.
Mere bald allegation of theft is not sufficient for holding the petitioner liable for the commission of alleged crime. In case of non-availability of direct evidence, the investigator is required to have collected even some circumstantial or indirect evidence during the investigation to justify arrest of the petitioner in the instant case. No details whatsoever have been given by the complainant that how he came to know that it were accused/petitioners who have committed the alleged crime. Mere allegation of theft in the incident that admittedly was unwitnessed, without disclosing the source and the details as to how the complainant came to know that it were the petitioners who committed the theft, would not be sufficient to connect the petitioner with the commission of alleged crime. There is no cavil with the proposition that a police officer under the provisions of Section 54 of the Cr. P.C. possesses the power to arrest a person who has been involved in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned. At the moment, there exists only a suspicion that too in the mind of complainant against petitioners. In case “Mst. Sughran Bibi v. The State” (PLD 2018 SC 595), the august Supreme Court of Pakistan observed that a suspect is not to be arrested straightway unless situation on the ground so warrants and the arrest is to be deferred till sufficient material or evidence becomes available on record of investigation prima face satisfying the Investigating Officer regarding correctness of allegation leveled against such suspect or regarding his involvement in the crime in issue. In another case titled “Shahzada Qaiser Arfat alias Qaiser v. The State and another” (PLD 2021 SC 708), the apex Court observed that having a power to arrest is one thing but the justification for exercising such power is quite another and police cannot make arrest of a person only because it has powers to do so. Since Section 54, Cr.P.C. confers a wide power and, therefore, such power has to be construed, interpreted and defined strictly. Check and limitation placed upon the powers of police officer under the provisions of Section 54 of Cr. P.C. still can be inferred through the existence of reasonability and credibility of information or complaint made before the police officer. It is hard to give a precise or general definition of what constitutes “reasonableness” in a complaint or suspicion and the credibility of the information; rather, it must depend on the presence of concrete legal evidence in the police officer’s cognizance, and he must determine whether it is sufficient to establish the reasonableness and credibility of the charge, information, or suspicion. Guidance has been sought from the case reported as ‘Abdul Qayyum v. S.H.O., Police Station Shalimar, Lahore (1993 PCr.LJ 91). Mere information per se does not fulfill the requirement of the provisions of Section 54 of Cr.P.C. The words ‘credible’ and reasonable used in Section 54 of Cr. P.C. clearly denote that it must be at least founded on some definite fact tending to cast suspicion on the person required to be arrested and not vague and sketchy information. Assessing the information as contained in F.I.R. in the instant case on the touchstone of above, it can very conveniently be resolved that information so provided by the complainant on the basis of which F.I.R. has been lodged can hardly be termed as reasonable complaint, credible information or even reasonable suspicion. Learned DPG in all fairness submitted that no tangible evidence or material has been collected by the investigator so far to connect the petitioners with the commission of alleged crime. At the moment, apart from suspicion there is ne tangible material available with the prosecution showing that there exist reasonable grounds to connect the petitioners with the commission of alleged crime. By now it has been settled that suspicion alone howsoever strong it may be, not be a subtitute for admissible and legal evidence. While referring to judgment “Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others” (PLD 2005 Lahore 470), this Court in case “Bashir Ahmad v. District Police Officer etc.” PLJ 2021 Cr.C 1553) held that even where a person is accused of a cognizable offence, the police should not arrest him unless there is some incriminating evidence available with the police against him. In the instant case, undeniably, no incriminating material is available with the prosecution to connect the petitioners with the commission of alleged crime, despite that insistence of I.O. to arrest the petitioners depicts his malice. This type of malice is ‘malice in law’ which is distinct from ‘malice of fact’. Malice in law is considered as implied malice that means to say the malice inferred from a person’s conduct. In case “Said Zaman Khan and others v. Federation of Pakistan through Secretary Ministry of Defence and others” (2017 SCMR 1249), the apex Court referred the observation of House of lords made in its judgment reported as “Shearer and another v. Shields” (1914 A.C. 808) and same reads:
“Between malice in fact and malice in law there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently.”
While dealing the element of malice, the apex Court in case “Shahzada QaiserArfat alias Qaiser v. The State and another” (PLD 2021 SC 708) observed as under:
6. The power of the High Courts and the Courts of Sessions to grant pre-arrest bail, first and foremost, must be examined in the constitutional context of liberty, dignity, due process and fair trial. Pre-arrest bail is in the nature of a check on the police power to arrest a person. The non-availability of incriminating material against the accused or non-existence of a sufficient ground including a valid purpose for making arrest of the accused person in a case by the investigating officer would as a corollary be a ground for admitting the accused to pre-arrest bail, and vice versa. Reluctance of the Courts in admitting the accused persons to pre-arrest Bail by treating such a relief as an extraordinary one without examining whether there is sufficient incriminating material available on record to connect the accused with the commission of the alleged offence and for what purpose his arrest and detention is required during investigation or trial of the case, and their insistence only on showing mala fide on part of the complainant or the Police for granting pre-arrest bail does not appear to be correct, especially after recognition of the right to fair trial as a fundamental right under Article 10A of Constitution of Pakistan, 1973. Protection against arbitrary arrest and detention is part of the right to liberty and fair trial. This Court has, in many cases, granted pre-arrest bail to accused persons after finding that there are no reasonable grounds for believing their involvement in the commission of the alleged offences and has not required independent proof of mala fide on part of the Police or the complainant before granting such relief. Despite non-availability of the incriminating material against the accused, his implication by the complainant and the insistence of the Police to arrest him are the circumstances which by themselves indicate the mala fide on the part of the complainant and the Police, and the accused need not lead any other evidence to prove mala fide on their part.
In the instant case, as has been hinted earlier, no incriminating material is available with the prosecution to connect the petitioners with the commission of alleged crime. Where petitioners have been involved in this case on the basis of suspicion and still Investigating Officer is bent upon to arrest them without having any admissible evidence against petitioners, possibility of false implication of petitioners in this case on the basis of malice and ulterior motive on the part of the complainant and police as well cannot be ruled out.
4. The upshot of the above discussion is that petition in hand is allowed and ad interim pre-arrest bail already granted to petitioners namely Muhammad Ayub and Falak Sher by this Court is confirmed subject to their furnishing of fresh bail bonds in the sum of Rs. 50,000/-each with one surety each in the like amount to the satisfaction of learned trial Court.
(K.Q.B.) Petition allowed
Regards zohaib Farasat Advocate High Court
03154632008
