2022 PLP 459 (MLD)

SOHAIL NASIR, J.

Being nominated accused of case FIR No. 174 recorded on 19.06.2021 under Sections 302/324/148/149, P.P.C., at police station Chotala District Jhelum and having apprehension of his arrest by the hands of police, Iftikhar Ahmad (petitioner) has approached this Court seeking protection for his right of liberty and has asked for pre-arrest bail.

2. It was reported by Imran Sarwar (complainant) that Fakhar Islam armed with 222 rifle, Hafiz Zohaib, Kamran Afzal, Iftikhar Ahmad (petitioner) all armed with pistols and Sarfraz empty handed by sharing vicarious liability had committed the 'Qatl-e-Amd' of Naeem Shabbir and Adnan Sarwar besides causing the injuries to Imran Sarwar and Ehtasham Shamraiz. It was alleged that Fakhar Islam made a fire that hit on the left thigh of Adnan; he fired second shot that wounded right thigh and back of Ehtasham Shamraiz; a bullet came out from the pistol of Hafiz Zohaib landed on the chest of Naeem Shabbir; Kamran Afzal made a fire that hit on the lower abdomen of Naeem Shabbir; he triggered another fire that caused injury on the left hip of Imran Sarwar (complainant). It was alleged that occurrence had started when petitioner raised 'Lalkara 1'.

3. Fakhar Islam and Kamran Afzal are in custody, whereas pre-arrest bail was allowed to Sarfraz by the learned Additional Sessions Judge Jhelum. Hafiz Zohaib is still away from the clutches of police.

4. HEARD

5. It is on record that immediately after this occurrence petitioner had taken the plea that on the day of occurrence at 06:00 pm he left his office that was Jhelum City Housing Society after biometric recording. Investigating Officer visited that place of work, from where claim of petitioner was confirmed that he was free from his duty at 06:00 pm. The crime scene according to Investigating Officer is at a distance of 20 kilometers from the office of petitioner and in a village area. Prima facie this appears to be an abnormal story that petitioner within 30 minutes arrived at place of occurrence, joined his co-accused, planned and committed the crime. The interesting situation arose when on 20.06.2021 Imran Sarwar (complainant) moved an application to the SHO that due to agony he could not tell the correct time of occurrence which in fact was 07:30 pm and not 06:30 pm. It is important to add here that statement of complainant with regard to occurrence was recorded in hospital and was completed at 10:30 pm. Even in that statement he gave the time of occurrence as 06:30 pm. Although learned counsel for complainant has referred the medico legal report of complainant, where he alleged the time of crime as 07:30 pm, but to my mind that document cannot override the complaint recorded in hospital and the FIR. The complaint shows that it is a well drafted document where details of occurrence have been provided minutely so question of confusion or missing of memory or absence of mind or slip of tongue does not arise.

6. Petitioner is father of Fakhar Islam and Sarfraz (co-accused), whereas Kamran is his son-in-law (Damad). Taking into consideration this fact also possibility of throw of wider net by involving maximum members of a family cannot be ruled out.

7. I am conscious of the fact that two persons lost their lives and two were seriously injured, but I cannot ignore the principles that the cases are to be decided on merits, in accordance with law and not on emotions or sympathies. This Court in "Mumtaz alias Bhutto v. The State and another2" had observed as under: - "A Judge in all circumstances is under obligation to decide a case in accordance with law. The phrase "in accordance with law" means that a person will comply with the terms of the law or will abide by or obey the law The law is not to be violated by the King (Lex Non a Rege Est Violanda) is an old maxim, and equally applicable to the modern state. It is illustrated as: - "King when deciding any case should not violate the law himself also. The law is equal for and it is same for every person. It is not discriminated on the basis of any post or position, it is same for every person whether he be king or not" A Judge is to follow the laws of the land and principles settled by the superior Courts. The Courts have only to go behind the principle "Let justice be done though the heavens may fall"

8. I am also cognizant of the principles that grant of pre-arrest bail is an extraordinary relief and can be exercised in extraordinary circumstances. But if it has imposed certain restrictions of mala fide and ulterior motive, at the same time it provides a safeguard and shelter to the innocent persons. This principle is also settled by now that while deciding the pre-arrest bail Court is not precluded to examine the merits of the case. In "Khair Muhammad's case3 the apex Court was pleased to observe that: - "The concept of pre-arrest bail is exceptional. It has to be exercised sparingly. The purpose behind is to save innocent persons from false allegations, trumped up charges and malicious prosecution at the end of complainant party. In the salutary judgment of this Court reported as "Meeran Bux v. The State and another" (PLD 1989 SC 347), the scope of the pre-arrest bail has been widened and as such while granting pre-arrest bail even the merits of the case can be touched upon"

9. In "Khalil Ahmed Soomro's cases4 it was ruled by the Honorable Supreme Court of Pakistan that: - "Although for grant of pre-arrest bail one of the pre-conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events hints to that effect are available, the same would validly constitute the element of mala fide".

10. The principles of extension of benefit of doubt to an accused can also be applied while deciding the question of bail as held in "Amir's case5 where it was observed as under: - "It may also be observed that even for purposes of bail, law is not to be stretched in favour of the prosecution. If any benefit of doubt arises, it must go to the accused". 11. "Mala fide" a Latin word is a sustained form of deception which consists of entertaining or pretending to entertain one set of feelings while acting as if influenced by another. It is associated with hypocrisy, breach of contract, affectation, and lip service. Black's Law Dictionary equates fraud with bad faith. The Duhaime online law dictionary similarly defines bad faith broadly as "intent to deceive", and "a person who intentionally tries to deceive or mislead another in order to gain some advantage"

6. Similarly word "Ulterior Motive" has been defined as "an alternative or extrinsic reason for doing something, especially when concealed or when differing from the stated or apparent reason."

12. In the case in hand to my mind mala fide and ulterior motive on the part of complainant are floating on record because of change of time of occurrence by him later on so as to come out from the challenge thrown by petitioner. So, I find it a fit case to use the extraordinary discretion of pre-arrest bail in favour of petitioner.

13. Resultantly this application is allowed. Interim pre-arrest bail already granted to petitioner is confirmed subject to his furnishing fresh bail bonds in sum of Rs.200000/- (two lacs) with one surety to the satisfaction of learned Trial Court.

14. It is made clear that observations recorded in this order are tentative in nature and shall not prejudice the case of prosecution during trial. JK/I-20/L Bail confirmed