1994 PLP 1426 (MLD)

This petition under section 497(5), Cr.P.C. has been moved for cancelling the pre-arrest bail granted to Sajjad Hussain Shah and Khadim Hussain accused/respondents by Sessions Judge, Vehari vide order, dated 29-4-1993.

2. The instant case (F.I.R. No.54 of 1993 dated 27-2-1993) has been registered at Police Station Saddar Mailsi, at the instance of Mukhtiar Ahmad, brother of Muhammad Iqbal (deceased). It is stated in the F.I.R. that the deceased in this case had married Mst. Saghiran who owned 8/9 square of landed property, ' which was resented by. the accused/respondents as she belonged to their family. Muhammad Iqbal (deceased) was, therefore, waylaid and injured by Mushtaq, Guftar Shah, Mukhtiar, Nasir Shah, Altaf Hussain Shah and Tariq Shah with fire-arms and was then lifted away and killed at the instance of the accused/respondents herein. They applied for grant of pre arrest bail to Sessions Judge, Vehari who granted the relief to them observing that the accused/respondents have been found innocent in numerous investigations conducted by the police that section 109, P.P.C. has been deleted from the challan and that Sajjad Hussain and Khadim Hussain, accused/respondents' have not been challaned either. Feeling dissatisfied with the said order, the complainant has filed the instant petition

3. Learned counsel appearing on behalf of the petitioner has pointed out that Mst. Saghiran, apprehending danger to her as well as her mother's life filed Writ Petition No.913 of 1991 against various persons including some of the accused named in the instant F.I.R. as well as Sajjad Hussain Shah, respondent. In order to seek protection she had married Muhammad Iqbal (deceased) who belonged to non-Syed family. This marriage was therefore, resented by the accused/respondents. Mst. Saghiran alongwith her mother and newly born child Mst. Nageena were subsequently detained illegally by Mushtaq at the Dera of Sajjad Hussain, respondent, and Muhammad Iqbal (deceased) was obliged to file a Habeas Corpus petition (Criminal Miscellaneous No.31-H of 1993) for their recovery, in this Court. On 7-2-1993 Mst. Saghir Mai appearing in this Court stated that she had been released little before arrival of police and that she had been recovered from the house of her maternal uncle Shah Muhammad. Learned counsel in the light of these facts submitted that Sajjad Hussain and Khadim Hussain, accused respondents wanted to grab landed property of Mst. Saghiran and were chasing her for the purpose while she had been knocking at the doors of the District Administration and the Courts to save her from their wrath and designs. At last the accused/respondents had got Muhammad Iqbal killed by the accused named in the F.I.R. and rendered Mst. Saghiran shelterless making it easy for themselves to snatch her property. It is contended that finding of the police that the accused/respondents are innocent, was not only erroneous but also mala fide. The learned Sessions Judge, according to learned counsel erred in allowing pre-arrest bail to the accused/respondents on the basis of police's findings. Learned counsel appearing on behalf of the respondents has opposed the petition.

4. Abdul Latif, D.S.P./I.O. who is present in Court with record, stated that accused/respondents have been consistently held innocent by D.S.P. Mailsi, D.S.P. Vehari, and also by him. He further stated section 109, P.P.C. has been deleted from the charge as the allegation of abetment levelled against the accused/respondents had not been proved and, furthermore the respondents have not been challaned.

5. The accused/respondents have not only been found innocent but they have also not been challaned. Obviously in such a situation learned Sessions Judge seized of the bail matter could not say that the accused/respondents were not entitled to grant of bail. The other accused named in the F.I.R. however have been arrested and challaned. It is pertinent to note that the complainant/petitioner or Mst. Saghiran have not filed any private complaint expressing dissatisfaction over police's conduct in holding respondents as innocent. In the circumstances, I am afraid bail granted to the accused/respondents cannot be cancelled:

6. As last resort learned counsel for the petitioner submitted that since the accused/respondents were not being challaned, therefore, learned Sessions Judge should have declined to allow bail to them as there was no apprehension whatsoever to them of being arrested. It is to be noted that this ground has not been taken up in this petition nor was it pressed into service before the lower Court. The respondents are named as abettors in the F.I.R. Although they have not been challaned presently but the complainant can still ask for reinvestigation of the case by another police agency and the accused/respondents would certainly apprehend their arrest again. In view of this legal position, learned Sessions Judge, therefore, has not committed any illegality by granting pre-arrest bail to them in the case.

7. For what has been stated above, I find no merit in this petition and hereby dismiss the same. . N.H.Q./M-1514/L Petition dismissed.