The Petitioners are accused of offences under Sections 341, 342, 365, 148, 149, PPC in case FIR No. 4/2020 dated 06-01-2020 registered at Police Station Sahuka, District Vehari. Through this application they seek pre-arrest bail in that case.
2. As per FIR, the prosecution case is that on 30-12-2019 at about 9:00 p.m., the Complainant and his nephew Muhammad Shahbaz, were on their way home when the Petitioners and their co-accused intercepted them near the Raja-W alay Bridge in Chak No. 307/EB. They forced him and Muhammad Shahbaz onto their motorcycles on gunpoint and took them to the village but released Muhammad Shahbaz after a while. However , they threatened to abduct and kill him if he did not pay them Rs. 210,000/- by 7.1.2020.
3. Mr. Rizwan Ahmad Khan, Advocate, learned counsel for the Petitioners contended that the Petitioners were innocent and the Complainant had falsely implicated them in this case due to ulterior motives. The FIR was lodged with an unexplained inordinate delay which made the prosecution version extremely doubtful. Lastly , the PWs were interested witnesses and there was no independent evidence to corroborate them.
4. Mr. Muhammad Usman Sharif Khosa, Advocate, submitted that the FIR was originally registered under Sections 341, 342, 148, 149, PPC which were bailable offences and the Petitioners were entitled to bail as of right. However , the learned Additional Sessions Judge withheld it on the ground that Section 365, PPC was also attracted to the facts and circumstances of the case. The learned counsel Contended that the learned Court could not import any penal provision in the FIR on his own. This action was patently illegal and had prejudiced the Petitioners.
5. Conversely , Mr. Adnan Latif, Deputy Prosecutor General assisted by Ch. Muhammad Tariq Manj, Advocate, the learned counsel for the Complainant, vehemently opposed this application. He contended that the Petitioners had no case for pre-arrest bail which was an extraordinary relief.
6. Arguments heard. Record perused.
7. Admittedly , FIR No. 4/2020 was lodged against the Petitioners for offences under Section 341, 342, 148 & 149, PPC all of which are bailable. However , the learned Additional Sessions Judge dismissed that bail application on the ground that allegations leveled in the FIR also constitute an offence under Section 365, PPC which is not bailable. The question is whether the learned Court could import the said section on his own although the police had not charged the Petitioners with it. The Hon'ble Supreme Court of Pakistan had the occasion to consider this question in Ch. Muhammad Anwar Samma etc., v. The State (1976 SCMR 168) and answered it in the negative.
It ruled: "We are also unable to agree that what has been done by the High Court, namely; importing a new offence with which the accused had not been charged, was proper ."
The Law laid down in the above-mentioned case has since been consistently followed. In this regard reference may be made to Allah Bachava and 3 others v. The State (2001 PCrJLJ 1082), Muhammad Irshad v. The State (2002 YLR 1234 ) and Laeeq Ahmad v. The State (2006 YLR 664). More recently the Hon'ble Supreme Court itself reaffirmed this view in Shah Zaib v . The State (2016 SCMR 1740 ).
9. In view of the legal position discussed above, it appears that the learned Additional Sessions Judge was not justified in considering the provisions of Section 365, PPC while refusing bail to the Petitioners. Even otherwise, the prosecution case smacks of malice as the Complainant has neither explained the inordinate delay in registration of FIR nor has disclosed the motive behind the alleged incident. Accordingly , this application is accepted and interim pre-arrest bail already granted to the Petitioners vide order dated 9.3.2020 is confirmed subject to their furnishing fresh bail bonds in the sum of Rs. 100, 000/- (Rupees one hundred thousand) each with one surety each in the like amount to the satisfaction of learned trial Court.