2021 PLP 1574 (MLD)

SOHAIL NASIR, J.

Saeed-ur-Rehman (petitioner) has asked for his pre-arrest bail in case FIR No.791 recorded on 30.11.2019 under Sections 302/109/148/149, P.P.C. at Police Station Nowshera Virkan, District Gujranwala.

2. Facts of the case are that Mst. Shaheen Bibi reported to the police that on 30.11.2019 Zahid Iqbal, Riaz Ahmad, Bilal Ahmad, Muhammad Iqbal and Yousaf all armed with Kalashnikovs, along with two unknown assailants made indiscriminate firing and committed the Qatl-i-Amd of Safian, Toqeer, Azam and Tahir. She further alleged that all accused committed the crime having consultations with Saeed-ur-Rehman (petitioner) and Faisal Iqbal. She also claimed that, on 27.11.2019, Nusrat Bibi had seen and overheard them in Courts' compound while making conspiracy.

3. Learned counsel for petitioner maintains that during the investigation with regard to main occurrence, prosecution's story was found incorrect therefore, involvement of petitioner in this case is result of mala fide and ulterior motive.

4. On the other hand, learned counsel for complainant and learned DDPP jointly contend that petitioner is specifically nominated in FIR; it was at his abetment that four persons lost their lives; the offences are of heinous nature; pre-arrest bail is an extraordinary relief which cannot be granted unless elements of mala fide and ulterior motive are established.

5. Heard.

6. The allegations of hatching abetment/conspiracy against petitioner and others at an open place, that was Courts' compound, in presence of their rivals, appears to be unnatural. FIR is silent about time, mode and manners of conspiracy. It is important to mention here that later on Shaheen Akhtar complainant moved an application to SHO where she also stated that according to Shafique Ali and Shahzad Ali, on 29.11.2019, at about 09:00 am they had gone to the house of Muhammad Iqbal (accused) where they had seen also Zahid Iqbal, Muhammad Riaz, Muhammad Yousaf, Bilal, Tayyab Ejaz, Muhammad Tayyab, Irshad Masih, Ejaz Jamil, Shahid Iqbal Cheema and Humayyun Gujjar who were planning for the crime and by this she had also implicated Ejaz Jamil, Shahid Iqbal Cheema, Humayyun Gujjar and Irshad Masih for this crime.

7. Muhammad Iqbal who is assigned the specific role of firing in main occurrence, during investigation had taken the plea of alibi that he was in Saudi Arabia on the day of occurrence. According to him, he left Pakistan through Ittehad Airlines on 29.11.2019 and returned on 26.12.2019. It was verified by the Investigating Officer on the basis of data secured from concerned quarters. Said Muhammad Iqbal was allowed bail after arrest by the Honorable Supreme Court of Pakistan vide an order dated 11.11.2020 (Criminal Petition No. 865-L of 2020). Thereafter, Yousaf who, too, is assigned the specific role of firing, approached this Court through a Criminal Miscellaneous (63082-B of 2020) for his bail after arrest, which was allowed vide an order dated 25.01.2021 as his plea of alibi was also established during investigation that he was in Karachi.

8. If presence of two principal accused has not been established on crime scene and they were found in Saudi Arabia and Karachi, then story of abetment/consultations also comes to under serious doubt as these two were too alleged to be present at the time of said conspiracy.

9. The conduct of complainant during investigation, even at bail stage can be looked into, if it is relevant keeping in view facts and circumstances of the case.

10. I am conscious of the fact that grant of pre-arrest bail is an extraordinary relief, but if on the material produced before the Court, on merits the case for bail is made out, the absence of elements of mala fide and ulterior motive cannot stand in the way of an accused. In "Khalil Ahmed Soomro v. The State (PLD-2017 SC 730) it was laid down 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."

11. By now this is also a settled proposition that while deciding the pre-arrest bail Courts are not precluded to examine the merits of the case. In "Khair Muhammad v. The State through P.G Punjab and another 2021 SCMR 130" it was ruled 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."

12. It is also important to mention here that two other accused Shahid Iqbal and Faisal Iqbal with the same allegations of abetment, have also been allowed bail after arrest by the learned Additional Sessions Judge Nowshera Virkan vide an order dated 03.06.2020 and no exception has been taken to it by complainant.

13. Resultantly, this application is allowed. Interim pre-arrest bail already granted to Saeed-ur-Rehman is confirmed subject to furnishing fresh bail bonds in sum of Rs.2,00,000/- (two hundred thousand) with one local surety for the satisfaction of learned trial Court. SA/S-41/L Bail confirmed.