Malafide can’t always be proved thru direct evidence, observes SC

Says HCs and sessions courts power to grant pre-arrest bail must be examined in constitutional context of liberty, dignity, due process and fair trial

ISLAMABAD - The Supreme Court of Pakistan Thursday observed that malafide being a state of mind cannot always be proved through direct evidence and it is often to be inferred from the facts and circumstances of the case.

A three-member bench of the apex court headed by Justice Manzoor Ahmed Malik made the observation in a judgment in a murder case.

It was December 7, 2019 at about 12 a.m. when three persons were shot dead on G.T. Road in Ferozewala, District Sheikhupura. Five brothers and three unknown persons were nominated in the first information report (FIR) to be the assailants; while their sixth brother, Qaisar, a petitioner, and their father were nominated as abettors, alleged to have instigated and conspired with the murderers.

Accused Qaisar, the alleged abettor, approached the Sessions Court, for pre-arrest bail. However, the Sessions Court turned down the petition. He later filed an appeal in the Lahore High Court (LHC), which was also dismissed. The accused therefore challenged the impugned High Court order dated 03.03.2020 before the apex court.

The Supreme Court noted in its verdict that the High Court has declined the relief of pre-arrest bail to the petitioner making the observation that pre-arrest bail is an extraordinary relief and can only be extended to an innocent person who is implicated in the case on the basis of malafide, but the petitioner has failed to point out to any malafide.

The SC judgment said that the LHC did not appreciate that the “malafide” being a state of mind cannot always be proved through direct evidence, and it is often to be inferred from the facts and circumstances of the case.

It further said that the investigating officers should not mechanically make the arrest of a person accused of having committed a cognizable  offence, rather they must exercise their discretion in making the arrest of such person judiciously by applying their mind to the particular facts and circumstances of the case and consciously considering the question: what purpose will be served and what object will be achieved by arrest of the accused person?

The apex court added that 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.

The judgment noted that in the instant case the petitioner along with his father were in Saudi Arabia for performing Umra when the occurrence took place. 

No doubt, managing one’s presence in a foreign country at the time of actual commission of an offence may be a tactic to escape criminal liability for being involved in the commission of that offence as abettor or conspirator; but the court must base its conclusion as to involvement of an absentee accused as abettor or conspirator on some solid material collected during the course of investigation, and not on surmises or conjectures, either tentatively at bail stage or finally at judgment stage.

The apex court admitted the petitioner to pre-arrest bail to save him from unjustified arrest, consequent humiliation and the curtailment of his right to liberty.

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