2017 PLP 965 (MLD)

ZAHEER-UD-DIN KAKAR, J.

Though this application under section 498, Cr.P.C., the applicants have sought pre-arrest bail in case FIR No.11 of 2016, dated 29.02.2016, registered at Levies Thana, Gandawah, District Jhal Magsi, in respect of offences under sections 302, 147, 148, 149, P.P.C. read with Section 7 Anti-Terrorism Act, 1997.

2. Precisely stated the facts of the prosecution case as per the FIR are that on 20.02.2016, the complainant Rahim Bakhsh was sitting in his Otaq along with Lal Muhammad, Zafarullah, Muhammad Yousaf, Mehrullah and Muhammad Arif, meantime, the accused/applicants along with absconding accused persons attacked upon them, made indiscriminate firing and also fired 3/4 rocket launchers, due to which panic created in the area and took away Zafarullah, Mehrullah and Muhammad Arif and kept them for two hours, thereafter, at about 5:30 p.m. they killed them by means of firing and threw their dead bodies near the house of complainant situated at Goth Qazi Ismail, Tehsil Gandawah.

3. On 25.05.2016, the accused/applicants surrendered themselves before this court and they have been admitted to ad-interim pre-arrest bail, subject to furnishing surety to the tune of Rs.100,000/- (rupees one lac) each and PR bond of the like amount.

4. Learned counsel for the applicants contended that the accused/ applicants are innocent of the charge and have not committed any offence whatsoever and have falsely been implicated in the instant case by the complainant with mala fide intention and ulterior motive; that there are serious enmity between the parties and the complainant party being highly influential persons of the area, lodged instant false case as many as five other false cases against the accused party; that no specific role has been assigned towards the accused/applicants in the commission of alleged offence, thus, the applicants are entitled for confirmation of ad-interim pre-arrest bail dated 25.5.2016. In support of his contentions, the learned counsel relied upon PLD 2010 Karachi 110, 2012 PCr.LJ 806 Sindh, 2010 PCr.LJ 310 Karachi and 2004 SCMR 1167.

5. Conversely, the learned State Counsel vehemently opposed the application and stated that the applicants have been involved in a number of criminal cases. He submitted that the applicants have been named in the FIR, which was lodged promptly. He has further submitted that the recovery cannot be effected because firstly, the applicants are not co-operating in the investigation and secondly, since they have not been arrested and this is hampering investigation and recovery. He added that the applicants are involved in the murder of three innocent persons, therefore, they are not entitled for any relief.

6. I have heard learned counsel for the parties and have also gone through the available record. The applicants have alleged that the complainant lodged a false FIR against them, therefore, they are entitled for confirmation of ad-interim bail. It would be necessary to mention here that the Hon'ble Supreme Court of Pakistan in the case of Rana Muhammad Arshad v. Muhammad Rafiq and another (PLD 2009 SC 427), laid down the framework and guide lines, according to which, jurisdiction vested in the High Court and Courts of Sessions is to be exercised and relevant paras read as under:-- "

8. It was perhaps for the first time in December, 1948 that by interpreting the latter part of section 498 of the Code of Criminal Procedure in Hidayat Ullah Khan's case PLD 1949 Lah. 21 = AIR 1949 Lah. 77, the power vesting in the High Courts and the Court of Sessions to admit persons to bail before they could be arrested, was authoritatively discovered by a Full Bench of the Lahore High Court, Corenlius, J. (As he then was) epitomized the said power and it bounds in the following words:-- "For the reasons given above, the reply which I would give to the question referred to us is that, in a proper case, the High Court has power under section 498, Criminal Procedure Code, to make an order that a person who is suspected of an offence for which he may be arrested by a Police Officer or a Court, shall be admitted to bail. The exercise of this power should, however, be confined to cases in which, not only is good prima facie, ground made out for the grant of bail in respect of the offence alleged, but also it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm."

9. Even since then, the said interpretation so made, the said powers so found and the parameters so prescribed, have been regularly and repeatedly coming up for scrutiny by the Superior Courts including this Court. But each time the matter was re-examined, the same was only reaffirmed. The said concept as it was initially propounded; as it developed and as the same stands today, may be summarized for the benefit of us all as under:-- (a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives; (b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail; (c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e., unless he establishes the existence of reasonable ground leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt; (d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonor him; (e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive at law; and finally that; (f) In the absence of a reasonable and justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instant i.e., the Court of Session, before petitioning the High Court for the purpose."

7. As per guideline "d" (supra) in addition to the other guidelines, the applicant must also show that his arrest was being sought for ulterior motives, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonor him. It is to be noted that the applicants have not alleged any mala fide or collusion in particular on the part of the investigation officer/levies. The grounds urged by the applicants for the grant of bail require deeper appreciation or evaluation of evidence, which is not permissible at this stage. For the time being, reasonable grounds are available on the record to believe that the applicants along with co-accused persons committed the offences alleged in the FIR, which fall within the prohibitory clause of section 497(1), Cr.P.C. It is well settled that for the purpose of bail only tentative assessment could be made and detailed assessment or evaluation of evidence should be left for the trial court. This view is supported by the cases of Bashir Ahmed and another v. The State (2007 PCr.LJ 966 Lahore) and Akhtar Hussain v. The State (2000 PCr.LJ 315 Karachi).

8. So far as the case law, relied upon by the learned counsel for the applicants is concerned, the same is not relevant to the facts of the present case. In criminal matters, particularly in bail matters, the authority of one case is hardly helpful to another case. Each case has its own peculiar facts and circumstances.

9. In view of the above discussion, I have reached to the conclusion that the applicants are not entitled to the grant of concession of pre-arrest bail. Consequently, the ad-interim pre-arrest bail dated 25.5.2016 granted to the applicants is hereby recalled and this bail application is rejected. JK/77/Bal. Bail declined.