2007 PLP 431 (YLR)

SYED SAJJAD HUSSAIN SHAH, J.

Petitioner Abdul Rehman through the instant petition has sought cancellation of bail granted to respondent No.2 by the learned Additional Sessions Judge, Khushab vide order dated 2-2-2006 in a case F.I.R. No.10 of 2006 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 read with sections 377/511/355/500/384, P.P.C. registered with Police Station Katha Sanghral, District Khushab.

2. Briefly the allegation against respondent No.2 is that he along with his co-accused tried to commit sodomy forcibly with the victim the complainant's son and on failure they had taken nude photographs of the victim and thereafter extorted money from him by blackmailing on different occasions.

3. It is contended by the learned counsel for the petitioner that the learned Additional Sessions Judge erred in granting bail to respondent No.2 as he was not present at the time of hearing of the bail petition which was granted in his absence was illegal, and against the laws and facts. Respondent No.2 did not join the investigation. He has been named in the F.I.R. with specific role and recovery is yet to be effected from him. The offences fall under the prohibitory clause, therefore, the bail granting order to respondent No.2 be recalled. The lower Court granted pre-arrest bail to the respondent in clear violation of laws and procedure laid down by the Honourable Supreme Court of Pakistan in this regard. Reliance is placed on Zia-ul-Hassan v. The State (PLD 1984 SC 1992) and Murad Khan v. Fazal Subhan and another (PLD 1983 SC 82).

4. Conversely, learned counsel for the State opposed the impugned order and supported the version of the petitioner.

5. Learned counsel for respondent No.2 supported the impugned judgment and submitted that respondent No.2 is innocent and has been falsely implicated in this case with mala fide intention for ulterior motive. The impugned order is well-reasoned and from the perusal of F.I.R., the story narrated by the complainant is not believable.

6. Arguments heard. Record perused.

7. The respondent along with his co-accused Umar Daraz (whose bail after arrest has been dismissed by this Court) on pistol point forced one Kamran aged 16 years to accompany them in a Baithak belonging to the respondent where they tried to commit sodomy upon him and took his nude photographs on pistol point and thereafter at different occasions extorted money from the said victim by blackmailing him. Respondent was allowed pre-arrest bail in his absence. There is nothing on the record to show that the respondent has been involved in this case with any mala fide intention and such aspect of the matter was even not considered by the lower Court while granting the respondent pre-arrest bail. Pre-arrest bail is an extraordinary relief, which is not granted in routine. Investigation is neither to be frustrated nor blocked by granting pre-arrest bail. It is granted in the cases of intended arrest with mala fide purpose or ulterior motive at the hands of the police. In the present case, there is no allegation whatsoever against the investigating agency to effect the arrest of the respondent for any mala fide purpose. In a case reported as Zia-ul-Hassan v. The State (PLD 1984 SC 192) it has been observed by the Honourable Supreme Court "The Court has no power to grant bail before arrest unless all the conditions laid down by the Superior Courts from time to time are satisfied, the most essential of them being the intended arrest tainted with mala fide which must be specifically stated. It is in this context also that other condition of irreparable loss is to be viewed. In another case of Murad Khan v. Fazal Subhan and another (PLD 1983 SC 82), which is a leading judgment on this point in which the case-law since 1949 was considered by the Honourable Supreme Court and it was observed that in order to make out a case of anticipatory bail, the following conditions are to be satisfied:- (i) Arrest being ulterior motives such as humiliation and unjustified harassment. (ii) Prosecution motivated by motive so to cause irreparable injury to reputation and liberty. (iii) Motivation of police on political consideration.

8. It needs hardly to be emphasized that provisions of section 498, Cr.P.C. are intended to use very sparingly in the exceptional cases where mala fide is patent and even latent. Such provisions cannot be used for circumventing normal procedure of arrest and investigation after arrest. Thus, unless the accused shows that he has strong case where arrest is sought to be made in a false case to defame and humiliate or blackmail him, the anticipatory bail cannot be granted.

9. In the light of the above principles, I have carefully considered the allegation contained in the F.I.R. lodged by the applicant-complainant. A bare reading of the impugned order would reveal that the learned Additional Sessions Judge failed to notice the principle discussed above. The learned counsel for the respondent was also unable to satisfy this Court with regard to the condition of mala fide of intended arrest. It is further observed that the learned lower Court while passing the impugned order ignored the fact that the discretion to grant anticipatory bail is not totally unfettered. There is distinction between the principle governing the grant of pre-arrest bail and grant of post-arrest bail. Viewed from any angle it is not a fit case for anticipatory bail, though after arrest, the accused would have been at liberty to urge the points on the basis of which the learned Additional Sessions Judge passed the impugned order.

10. Accordingly, the impugned order is set aside. This application for cancellation of bail is allowed with the direction to the respondent to surrender himself to proper custody. H.B.T./A-243/L Bail cancelled.