2023 SCLR 62

Other citations:

2023 SCP 248 (https://www.supremecourt.gov.pk/downloads_judgements/crl.p._611_l_2023.pdf)

2023 SCMR 2081 (https://www.pakistanlawsite.com/Login/MainPage)

[Supreme Court of Pakistan]

Present: Sayyed Mazahar Ali Akbar Naqvi and Syed Hasan Azhar Rizvi, JJ

Abdul Rehman—Petitioner

versus

The State and others—Respondents

Criminal Petition No. 611-L of 2023, decided on 11^th August, 2023.

(On appeal against the order dated 07.06.2023 passed by the Lahore High Court,  Lahore in Crl. Misc. No. 35337-B/2023.)

HEADNOTES

(a)   Criminal Procedure Code (V of 1898) —

— S. 498 — Penal Code (XLV of 1860), Ss. 435, 447, 427, 511, 109, 148, 149 & 506 — Mischief by fire or explosive substance with intent to cause damage — Pre-arrest bail, grant of — Delayed FIR — Pendency of litigation — Scope — Accused was alleged to have damaged the complainant’s crops — Accused had asserted ownership of the disputed land regarding which a civil case was also pending — Supreme Court noted a potential for false implication due to a land ownership dispute — The crime report, filed after a 62-day delay, had vaguely implicated the accused and six co-accused, two of whom had been declared innocent — Emphasizing the presumption of innocence and constitutional rights, the court granted pre-arrest bail to the accused. [Para. No. 6 & 7]

(b)   Penal Code (XLV of 1860) —

— S. 506 — Criminal intimidation — Scope — Whenever an overt act is materialized and ended into an overt act, the provision of Section 506, PPC would not be applicable and the only provision which will remain in the field is the overt act, which is committed in consequence of criminal intimidation. [Para. No. 6]

(c)   Penal Code (XLV of 1860) —

— S. 511 — Attempt to commit offence — Scope — Section 511, PPC is applied only where the prosecution is not certain about the offences. [Para. No. 6]

(d)   Criminal Procedure Code (V of 1898) —

— S. 498 — Pre-arrest bail — Scope — While granting pre-arrest bail, the merits of the case can be touched upon by the Court. [Para. No. 6]

Zulfiqar Ali Dhuddi, Advocate Supreme Court along with petitioner (through video link from Lahore) for the petitioner.

Mirza Abid Majeed, DPG, Abdul Maalik SI and Idrees Afzal, SHO for the State.

Date of hearing: 11^th August, 2023.

ORDER

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 07.06.2023 passed by the learned Single Judge of the learned Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 12/2023 dated 18.01.2023 under Sections 447/427/511/109/148/149 PPC (Sections 435 & 506 PPC added subsequently) at Police Station Kakrali, District Gujrat, in the interest of safe administration of criminal justice.

2.           Briefly stated the allegation against the petitioner is that he along with co-accused plowed and destroyed the wheat crop of the complainant and also set his millet crop on fire.

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. Contends that there is a delay of more than two months in lodging the FIR for which no plausible explanation has been put forth by the complainant. Contends that the land, which is the root cause of the occurrence, does not belong to the complainant and a civil litigation is pending between the parties.

4.           On the other hand, learned Law Officer opposed the petition by contending that the petitioner has specifically been nominated in the crime report with a specific role, therefore, he does not deserve any leniency from this Court.

5.           We have heard learned counsel for the parties at some length and have perused the available record with their able assistance.

6.           As per the contents of the crime report, the allegation against the petitioner is that he along with co-accused plowed and destroyed the wheat crop of the complainant and also set his millet crop on fire. However, it is the stance of the petitioner that the land in question is owned and possessed by him and a civil litigation regarding the same is also pending before the court of competent jurisdiction. It seems that the primary dispute between the parties is with regard to the ownership/possession of the land in question. In this view of the matter, the possibility of false implication just to pressurize the petitioner’s side to gain ulterior motives cannot be ruled out. However, at this stage, we do not want to comment on this aspect of the matter, lest it may prejudice the case of either of the party. The crime report was lodged after a delay of 62 days for which the complainant did not utter a single word. In the crime report, only a general role has been ascribed to the petitioner and his six co-accused. We have been informed that two co-accused of the petitioner, who were specifically nominated in the crime report, have been declared innocent during investigation. Even otherwise, we have been informed by the learned Law Officer that all the seven accused have been ascribed the role of jointly causing a loss of about Rs.100,000/- to the complainant. It is 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 merely on bald and vague allegations. So far as ‘criminal intimidation’ is concerned, the same has been defined in Section 503 PPC. A bare perusal of this provision of law makes it clear that whenever an overt act is materialized and ended into an overt act, the provision of Section 506 PPC would not be applicable and the only provision which will remain in the field is the overt act, which is committed in consequence of criminal intimidation. Similarly, the question of applicability of Section 511 PPC, which is applied only where the prosecution is not certain about the offences, would also be resolved by the learned Trial Court. It is now established that while granting pre-arrest bail, the merits of the case can be touched upon by the Court. Reliance is placed on Miran Bux Vs. The State (PLD 1989 SC 347), Sajid Hussain @ Joji Vs. The State (PLD 2021 SC 898), Javed Iqbal Vs. The State (PLD 2022 SCMR 1424) & Muhammad Ijaz Vs. The State (2022 SCMR 1271). Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C. entitling for further inquiry into his guilt.

7.           For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order and confirm the ad interim pre-arrest bail granted to the petitioner by this Court vide order dated 03.08.2023.

Bail granted