2000 P Cr (PLP)

(a) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑Ss. 497(5) & 498‑‑‑Penal Code (XLV of 1860), S.302/109/34‑‑‑Pre‑arrest bail, cancellation of‑‑‑Allegation against co‑accused was that of abetment and Trial Court had admitted him to pre‑arrest bail extending him benefit of doubt holding that no sufficient material was on record to connect co‑accused with the commission of offence‑‑‑Bail granted to co‑accused could not be cancelled, in circumstances‑‑‑Trial Court, however, granted bail to accused despite holding that prima facie case existed against him as he was armed with pistol and held deceased into his clasp and that provisions of S.148/149, P.P.C. were applicable and that there was no occasion to admit accused to bail before arrest even if S.302/34, P.P.C. were not made applicable against him‑‑‑Trial Court, in circumstances, had misconstrued law and principle applicable to grant of pre‑arrest bail‑‑‑Bail allowed to accused was withdrawn, in circumstances. 1997 PCr.LJ 850 and PLJ 1979 SC 377 ref. (b) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 498‑‑‑Pre‑arrest bail, grant of‑‑‑Principle‑‑‑Pre‑arrest bail was an extraordinary concession which was to be extended to accused who had been implicated falsely. M. Aslam Malik for the State. ORDER Through this petition cancellation of bail granted to Khalid Nawaz and Muhammad Bakhsh, respondents Nos. l and 2, respectively, is sought.

2. As regards Muhammad Bakhsh respondent, the allegation against him is that of conspiracy and abetment in the commission of offence. The learned Additional Sessions Judge has placed reliance on two cases namely 1997 PCr. LJ 850 and PLJ 1979 SC 377 wherein it was observed that section 109, P.P.C. was repugnant to Injunctions of Islam. The learned Additional Sessions Judge has not properly interpreted the law laid down, as such he fell in error to allow pre‑arrest bail to Muhammad Bakhsh. Without making any comments on the legal aspect of the case, suffice it to say that the allegation against him is that of abetment and according to the learned Additional Sessions Judge, there was no sufficient material to connect him with the commission of the offence, therefore, by extending benefit of doubt, he was admitted to pre‑arrest bail. I am not inclined to interfere with the order. As such, this application to the extent of Muhammad Bakhsh respondent is dismissed.

3. However, the case of Khalid Nawaz alias Saqi respondent is different. The learned Additional Sessions Judge has himself observed that even if section 302/34, P.P.C. is not made applicable against him, he would be guilty under section 148/149, P.P.C. as according to the prosecution, he was armed with pistol and had taken the deceased in his clasp. After observing the same, he proceeded to admit him to bail before arrest. Pre‑1 arrest bail is an extraordinary concession which is to be extended to aril accused person who has been implicated falsely. If it was observed by the learned Additional Sessions Judge that there was prima facie case against respondent and he held the deceased into clasp and provisions of section 148/149, P.P.C. were applicable, there was no occasion to admit him to bail before arrest. I am, therefore, of the view that the learned Additional Sessions Judge has misconstrued the law and the principles applicable to C grant of pre‑arrest bail. I am, therefore, constrained to withdraw the bail allowed to Khalid Nawaz respondent. He will surrender himself before the police. However, this order will not preclude him from moving for grant of bail after arrest.

4. The petition is disposed of with the above observations. H.B.T./N‑20/L Order accordingly.