' Through this petition Allah Bachaya, Kalu Khan, Abdul Khaliq and Lal alias Kaura petitioners have sought pre-arrest bail in case F.I.R. No, 111 registered at Police Station Bait Mir Hazar Khan, District Muzaffargarh on 28-8-2000 for offences under sections 337-L(1)/341/34, P.P.C. Earlier on an application submitted by the present petitioners before the Court of Session, Muzaffargarh for their pre-arrest bail had been dismissed by the learned Additional Sessions Judge, Alipur, District Muzaffargarh vide order, dated 15-9-2000.
2. After hearing the learned counsel for the parties and going through the record it has been noticed that the F.I.R. In this case invoked only an offence under sections 337-L/34, P.P.C. And on 15- 9-2000 the petitioners' application for pre-arrest bail was dismissed by the learned Additional Sessions Judge, Alipur, District Muzaffargarh. Subsequently section 337-L, P.P.C. Was deleted from the F.I.R. By the police and the same was substituted by section 341, P.P.C. An offence under section 341, P.P.C. Is bailable and, therefore, the petitioners were not arrested by the police. Upon completion of investigation a challan was submitted before the Court of competent jurisdiction on 9-10-2000 and in the challan as well the only offence invoked against the_ petitioners was one under section 341, P.P.C. Thereafter, on 20-11-2000 a charge was framed by the learned trial Court against the petitioners for an offence under sections 341/34, P.P.C. It so happened that during the interregnum Mubarak Ali complainant instituted Writ Petition No,11337 of 2000 before this Court wherein he complained against the conduct of the Investigating Officer and maintained that the provisions of section 337-L(1), P.P.C. Had wrongly been deleted from the F.I.R. And the same had been substituted by the provisions of section 341, P.P.C. On account of bias shown by the Investigating Officer in favour of the accused party. That writ petition was disposed of by this Court on 25-102000 with a direction to the Superintendent of Police, Muzaffargarh to attend to the grievances of the petitioner and to take appropriate action in that regard, if called for, as deemed warranted or expedient by him in the circumstances. It was not brought to the notice of this Court on 25-10-2000 that a challan has already been submitted by the local police before the Court of competent jurisdiction on 9-10-2000 after completing the investigation. Be that as it may, on the basis of the abovementioned order passed by this Court on 25-10-2000 the local police re- introduced section 337-L(1), P.P.C. Into this case and required arrest of the present petitioners which necessitated recourse to this Court by the present petitioners through the present petition seeking pre-arrest bail.
3. An offence under section 341, P.P.C. Is bailable. It is not disputed that the learned trial Court has already taken cognizance of the case and a charge for an offence under sections 341/34, P.P.C.
Already stands framed against the petitioners. It is also not denied that so far the said charge has not been amended by the learned trial Court to include an offence under section 337-L(1), P.P.C.
Thus, at this stage, whatever be the other allegations levelled by the complainant (sic) the findings of the police, the only allegation that the petitioners are to face before the trial Court is the one levelled in the charge framed against them by the learned trial Court. As already observed above the charge framed against the petitioners, as it stands today is only in respect of an offence under sections 341/34, P.P.C. And the said offence is bailable. Thus, at this stage this Court is left with no option but to admit the petitioners to pre-arrest bail as bail is claimed in a bailable offence as a matter of right and not by way of grace or concession.
4. It may be added that it was held by the Honourable Supreme Court of Pakistan in the case of Ch. Muhammad Anwar Samma, etc. v. The State 1976 SCMR 168 that a bail application is to be decided by a Court of law on the basis of the penal provisions actually invoked in the F.I.R. And not on the basis of penal provisions which a Court may consider to be also attracted to the allegations contained in the F.I.R. Extending the same principle to a situation like the one in the present case it may be held that once a charge has been framed against an accused person by a trial Court then his bail application should be decided on the basis of the allegations contained in the charge and not on the basis of any other penal provision which the police or the complainant party may consider to be also attracted to that case. It is not disputed that the subsequent change of opinion by the Investigating Officer regarding applicability of the provisions of section 337-L(1), P.P.C. To the case in hand had been brought about not through any fresh investigation carried out into the said case but on the basis of the same material which was already available on the record. Thus, the learned trial Court was seized of the entire material at the time of framing of the charge and it had, for its own reasons, not framed a charge under section 337-L(1), P.P.C. Against' the petitioners. If the complainant or the State feel aggrieved of omission of the provisions of section 337-L(1), P.P.C.
From the charge then they are at liberty to apply before the learned trial Court for amending the said charge suitably and any such application-shall surely be dealt with by the learned trial Court strictly in accordance with the relevant law and the facts of the case and obviously without in any manner being influenced by anything observed or done in the present proceedings. If the charge is, thus, amended by the trial Court then in that eventuality the petitioners may need to apply for pre-arrest bail in respect of any new offence so added to the charge. I for one am not ready to concede a power to the Investigating Agency to disturb the liberty of a citizen of its own in a given case when cognizance of such a case has already been taken by the trial Court and a charge has been framed by it.
5. For the reasons mentioned above this petition is accepted and the ad interim pre-arrest bail already allowed to the petitioners by this Court on 24-1-2001 is hereby confirmed subject to furnishing fresh bail bonds by the petitioners in the sum of Rs, 50,000 (Rupees fifty thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court.