1999 P Cr (PLP)

Keeping in view the aforesaid circumstances I find that the applicant has made out a case for anticipatory bail. The present bail application is, therefore, allowed. All the present accused are admitted on pre-arrest bail subject, however, to their furnishing solvent surety in the sum of Rs. 50,000 each with P.R. Bond in the like amount to the satisfaction of this Court. The surety must be resident of Karachi. The applicant/accused are directed to join the investigation if and when called by the Investigation Officer." I have heard learned counsel for the parties, including learned State Counsel at length and perused the record. Learned counsel for the applicant/complainant contended that no mala fide or undue harassment was alleged, even then the learned Incharge Sessions Judge, Karachi East granted anticipatory bail in violation of the principles governing the grant of anticipatory bail. He also pointed out that the complainant had engaged Mr. Qadir Khan, Advocate as his counsel, but he was not allowed to make submissions and he lodged the protest which is available on record with the orders of the learned Incharge Sessions Judge that the same may be filed. Learned counsel for the respondents Nos. l, 2 and 3 submitted that on 20-12-1996, F.I.R. No.250 of 1996 was lodged for the offences under section 452/506(b), P.P.C. by the respondents side against the present applicant/complainant because he had trespassed into the house duly armed with pistol to kill the respondents but was apprehended on the spot, and was taken into custody. He was released subsequently on bail by the learned Judicial Magistrate. He further submitted that the respondent No. t, aged about 60 years is a graduate engineer while respondents Nos.2 and 3 are his sons and by profession they are doctors. They have been allegedly involved in a false case due to a dispute over disposal of property which is a dispute of civil nature. In support of his submissions, the learned counsel cited Muhammad Tayyab v. The State 1997 PCr.LJ 597, Muhammad Abid v. Nasir Khan 1997 PCr.L1 648 and Inayatullah v. The State 1997 PCr.LJ 1366. In the cited case-law, it was held that principles applicable for grant of bail are different from the principles applicable for cancellation of bail. Bail could be withdrawn only when the order of bail is perverse and not supported by good reasons. There is no cavil with this proposition but each case is required to be decided on the basis of its facts and circumstances. Since this is a matter of anticipatory bail, therefore, it is to be seen whether the impugned order is legally sustainable in law in the light of principles governing the grant of anticipatory bail. Section 498, Cr.P.C. empowers the Court of Sessions and the High Court to grant pre-arrest bail, in cases of exceptional nature, but this power has to be exercised when the pre?conditions laid down by Superior Courts from time to time are satisfied. The learned counsel for the applicant/complainant cited Murad Khan v. Fazle Subhan and another PLD 1983 SC page 82 which is a leading judgment on this point, in which 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 as to cause irreparable injury to reputation and liberty, and (iii) Motivation of police on political consideration. The scope of bail before arrest was further enlarged in the case of Jamaluddin v. State 1985 SCMR 1949 wherein it was held as follows:-- "It has been laid down by this Court that the grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard. In Murad Khan's case to which preference was made by the learned Judge, this Court reiterated the principles that arrest for ulterior motives such as humiliation and unjustified harassment was valid consideration for grant of pre-arrest bail. Similar rule was laid down in Zia-ul-Hassan's case. In our opinion, therefore, the order of the learned Sessions Judge, did not in any respect, disregard the well-recognized principle for grant of pre-arrest bail to the petitioner. Without upsetting the finding, reached by the learned Sessions Judge that the petitioner had been involved for ulterior motives of harassing due to enmity existing between the parties, the learned Judge in the High Court was not justified to invoke his suo motu powers for the purpose of cancelling the order of bail." In yet another case, reported as Miran Bux v. The State and another PLD 1989 SC 347, it was held as follows;-- "Apart from we find that the Sessions Judge granted the pre-arrest bail to the appellant after considering the merits of the case inasmuch as he inter alia observed that the injury alleged to have been caused by the appellant to the leg of the deceased was according to post-mortem note, neither fatal nor was caused on the vital part of the body and was declared to be simple and that it was a case of further inquiry so far as the appellant is concerned." From the above quoted paragraph it is evident that merits of the case were made basis for making out a case for pre-arrest bail. At page 350 of the same judgment it was further observed by the Honourable Supreme Court as follows:-- "Since the appellant remained on bail for more than one year before the bail was cancelled by the High Court without abusing the concession of bail in any manner and the reason given by the learned Sessions Judge for grant of pre-arrest bail that the injury was on non-vital part of the body of deceased i.e. thigh and was simple, was not without foundation, we would, therefore, in the circumstances set aside the impugned order of the High Court and restore the order of the Sessions Judge granting the pre-arrest bail." In Jam Sadik Ali v. The State 1989 PCr.LJ 1910, Ajmal Mian, C.J, (as he then was) held that merits of the case can be touched while granting pre-arrest bail. The law of bail is a growing phenomenon. It needs hardly to be emphasised that provisions of section 498, Cr.P.C. are intended to be used 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. In the light of above principles I have carefully considered the allegations contained in the F.I.R. lodged by the applicant/complainant. It would be relevant to reproduce paras. Nos.4 and 5 of the grounds taken by the respondents Nos. 1, 2 and 3, in their bail application which read as under: (4) That the applicants have acted in self-defence, as a result of which the complainant received injuries. (5)??????? That it is but natural, that the dogs would attack the intruder/trespasser, had the complainant not attacked the applicants in their house. The dogs would not have attacked." The medical evidence as well as the above quoted paragraphs lend considerable support to the allegation of the complainant that he was maltreated, beaten and also bitten by dogs. A plain reading of the impugned order reveals that the learned Incharge Sessions Judge failed to notice the principles discussed above. Learned counsel for the respondents was also unable to satisfy me, with regard to the condition of mala fide of the intended arrest. The alleged plea of mala fide is also negated by the fact that F.I.R. was lodged by the complainant on 24-12-1996, after he was released from the Hospital and the respondents Nos.l to 3/accused applied for anticipatory bail on 26-12-1996 i.e. after two days. Had they not been influential persons as alleged by the complainant, in the instant case, the Police could have easily nabbed them for the purpose of investigation. It is further observed that the learned lower Court while passing the impugned order lost sight of the fact that the discretion to grant anticipator bail is not totally unfettered or untrammelled. There is a distinction between the principles governing the grant of pre-arrest bail and grant of post-arrest bail. Viewed from any angle it is not a fit case for grant of anticipatory bail though after arrest the accused would have been at liberty to urge the points on the basis of which the impugned order was passed by the learned Incharge Sessions Judge. Accordingly, the impugned order is set aside and this application is allowed with directions to the respondents Nos. l, 2 and 3 to surrender themselves to proper custody. N:H.Q./N-75/K?????????????????????????????????????????????????????????????????????????????????? Application allowed.