2022 PLP 78 (YLRN)

ABDUL HAMEED BALOCH, J.

The applicants Nazar Muhammad and Saif-ud-Din seek pre-arrest bail in FIR No.126 of 2019 registered with Police Station Shalkot Quetta, under sections 302 Q&D, 34 of the Pakistan Penal Code, 1860 ("P.P.C."). Pertinent to mention here that vide this court order dated 12.08.2020 the applicant/accused was granted ad-interim pre-arrest bail.

2. Brief facts of the case are that on 15.10.2019 at about 11:30 p.m., the complainant namely Sanaullah lodged the referred FIR, alleging therein that on the stated date he along with his brother namely Muhammad Anwar were going to Akhtar Abad in a Landcruiser bearing Registration No. JAC/675. His brother was driving the vehicle and he was reading the newspaper, when at about 9:15 a.m. they reached Sharif Abad Chowk, meanwhile two persons riding on Honda 125/CC Motorcycle suddenly started firing upon them, resultantly his brother sustained bullet injuries, while he saved himself by jumping from the Landcruiser, whereas the motorcycle rider then escaped from the spot. The accused were looking Brahwi. The reason behind the motive is of their enmity with different tribes. Consequently, the referred FIR was lodged against unknown persons.

3. Learned counsel for the applicants contended that the applicants have been nominated in the instance through supplementary statement, and the applicants on having come to know about the same surrendered before the Sessions Court, Quetta for grant of pre-arrest bail and were, therefore, admitted to ad-interim pre-arrest bail vide order dated 22.11.2019, but thereafter the Sessions Division Sariab has been established and the cases were transferred to the Sessions Judge Sariab, Quetta and the applicants were regularly appearing before the said court; that a person namely Nazar Muhammad, who was apprehended by the security personnel on entrance of the court premise, whereby a pistol was also recovered from him, while the applicants were regularly receiving threats and even on the said date, they were also threatened by the said person in the court premises; that the application for exemption from personal appearance was, therefore submitted, which was accepted by the court after inquiring form the security personnel of the court. Under such compelling circumstances the applicants withdrew the application from the file of Sessions Judge, Sariab and surrendered before this court for grant of bail; that the applicants are not nominated in the FIR rather subsequently they have been implicated through supplementary statement; that the applicants are innocent and they have been implicated with mala fide intention and ulterior motive just to harass and humiliate them. Learned counsel relied upon the following reported cases (2020 SCMR 761) (2019 SCMR 1923) (2020 MLD 730) (2020 PCr.LJ 73) (2019 MLD 1505).

4. The learned State counsel and learned counsel for the complainant vehemently opposed the contention of the applicant, stated that the applicants have been nominated through supplementary statement with specific role. The applicants have motive for the commission of the offence.

5. Heard. Record perused. It transpires that the complainant lodged the FIR against unknown persons, stating therein that they have enmity with different tribes. The complainant submitted supplementary statement on the next day i.e. 16.10.2019 and nominated the applicants in the commission of offence. The supplementary statement does not disclose the source from whom the complainant came to know about the involvement of the applicants. Subsequent statement cannot be equated with FIR as there is very likelihood that the nomination of the persons in subsequent statement is with due deliberation. In this regard reliance is placed on the case of Noor Muhammad v. State 2008 SCMR 1556, whereby it has been held as under:-- "

6. It is an admitted fact that the complainant did not mention the name of the petitioner and co-accused in the FIR but later on implicated them in the commission of offence through supplementary statement recorded before the Investigating Officer on the same day. The complainant has failed to disclose as to how he came to know the name of the accused. In case the contents of the, first information report and supplementary statement are put in a juxtaposition then it is crystal clear that the complainant had taken altogether U-Turn from his previous stand. This fact makes it a case of further inquiry under section 497, Cr.P.C. Moreover, since name of petitioner and co-accused were not mentioned in the FIR and was mentioned in the supplementary statement by complainant which fact also brings the case within the ambit of further inquiry. It was held by this Court in the case of Falak Sher alias Sheru v. The State 1995 SCMR 1350 that FIR is the document which is entered into book maintained at the police station at the complaint of informant and brings the law into motion whereby police starts investigation of the case under section 156, Cr.P.C. Any statement or further statement of the first informant recorded during the investigation by police would neither be equipped with First Information Report nor read as part of it. Similarly, it was held by this Court in the case of Khalid Javed and another v. The State 2003 SCMR 1419 that any statement or further statement of the first informant recorded during the investigation by the police would neither be equated with FIR nor read as part of the same and the value of the supplementary statement, therefore, will be determined keeping in view the principles enunciated by the superior Courts in this behalf."

6. Adverting to the competence of the application before this court, since the applicants first approached the trial court for pre-arrest bail and appeared on so many hearing, whereafter due to threat they withdrew the bail application and directly approached this court by invoking concurrent jurisdiction. It is true that normally a person, against whom a case has been registered, at the first instance, may approach the original Court having jurisdiction i.e. Sessions Judge in the matter of bail before arrest because propriety so demands but it is not an absolute rule as depending upon the compelling circumstances of each case a person can approach directly to the High Court by invoking its concurrent jurisdiction. For rendering this view, I am fortified with judgments, reported in (2017 MLD 1204), (1991 SCMR 322), (2020 MLD 783) and (2004 SCMR 1167).

7. As far as the pre-arrest bail is concerned, which is extraordinary relief and the same has to be granted sparingly, it is worth mentioning that no doubt the mala fide is a sine qua non for grant of pre-arrest bail but it is settled principle of law that the court can even look and evaluate the same from the facts and circumstances of the case, which apparently is oozing in this case. Moreover, there is abundant case-law for the proposition that apprehension of arrest of an accused being for ulterior motive, for example, that of humiliation and unjustified harassment is a sine qua non for pre-arrest bail. Reliance in this regard is placed on the landmark judgment of the august Supreme Court of Pakistan in the case of Ajmal Khan v. Liaquat Hayat (PLD 1998 SC 97). Similar view was rendered by the apex Court in the case of Syed Muhammad Firdaus and others v. The State (2005 SCMR 784) in the following terms:-- "Bail before arrest

Principles

Arrest for ulterior motives such as humiliation and unjustified harassment is a valid consideration for grant of pre-arrest bail."

8. The purpose of grant of bail under section 498, Cr.P.C. is to protect the liberty and reputation of the citizen, even granting pre-arrest bail the provision of section 497, Cr.P.C. also to be kept in mind. Reasonable grounds must exist for grant of bail before arrest. Keeping in view the fact and circumstances of the case, the applicants have made out a case of further inquiry and deserve confirmation of ad-interim pre-arrest bail.

9. Admittedly the pre-arrest bail is an extra ordinary relief, the scope whereof is narrow still, it can be lawfully extended to a person who does not prima facie appear to have committed a non-bailable offence or there is room for further probe into his guilt within the meaning of section 497(2), Cr.P.C. The prime object of the pre-arrest bail is to save the innocent person from the apprehension of being arrested for a tainted purpose, carved out by the mischievous wire puller, driven by maliciousness and malignancy of intention. For the reasons stated above, it is a fit case to extend the relief of pre-arrest bail. Resultantly by accepting this application ad-interim bail already granted to the applicant in terms of order dated 12-08-2020 is hereby confirmed. JK/186/Bal. Bail confirmed.