2021 PLP 1720 (MLD)

ROZI KHAN BARRECH, J.

This order disposes of Criminal Bail Before Arrest Application No.(S)152 of 2020 whereby the applicant Obaidullah son of Master Raheem Jan is seeking bail before arrest in FIR No. 14 of 2020 lodged with PS Aziz Balo Shaheed Notal District Naseerabad under 302, 324, 109, 506(2), 109 and 34, P.P.C.

2. Facts of the case are that the complainant Sanaullah son of Khuda Bakhsh lodged the aforesaid FIR dated 06.09.2020 with the allegation that he is resident of Quetta, a landlord by profession and his cousin namely Kareem Bakhsh alias Karam Bakhsh has lands in Goth Sarwar Muhammadshai. Three days, before the incident Gul Hassan son of Master Raheem Jan threatened his cousin on telephone bearing cell No.03333998961 for dire consequences and they have arranged tents and waiting for them. On the day of occurrence at about 12:00 a.m. the complainant along with his cousin Kareem Bakhsh son of Muhammad Bakhsh and Manzoor Ahmed son of Shafi Muhammad reached Goth Sarwar Muhammadshai. The accused persons namely Master Raheem Jan son of Karam Bakhsh, Gul Ahmed, Ubaidullah sons of Master Raheem Jan caste Muhammadshai equipped with T.T pistols and sitting tents on the said land. When the complainant along with Manzoor Ahmed went near the accused to talk to them, the accused Master Raheem Jan, Gul Ahmed and Ubaidullah started firing. The accused Master Rahim made a fire upon Kareem Bakhsh alias Karam Bakhsh and the accused Gul Hassan made firing upon Manzoor Ahmed, in result whereof both of them sustained firearm injuries and subsequently Kareem Bakhsh alias Karam Bakhsh succumbed to the injuries. Hence, the crime report.

3. The accused/applicant surrendered himself before this Court and requested for grant of ad-interim pre-arrest bail, hence ad-interim pre-arrest bail was granted to the accused by this court vide order dated 08.09.2020.

4. I have heard the learned counsel for the parties and with their able assistance gone through the record. Before dilating upon the material available on record, it would be better to first discus the objection taken by the learned counsel for the complainant that the applicant has directly approached this Court instead of approaching trial Court. Suffice it to observe here that the objection so taken is without any substance, because in exceptional circumstances, where the life of a person is under threat in case of directly approach the trial Court, then under such circumstances he can approach this Court. Reliance is placed on case of Rais Wazir Ahmed v. The State 2004 SCMR 1167, wherein it was held that: "It is true that normally a person, against whom a case has been registered, at the first instance, may approach the original Court having jurisdiction i.e. Sessions Judge, in the matter of bail before arrest because propriety so demands but it is not an absolute rule as depending upon the compelling circumstances of each case a person can approach directly to the High .Court by invoking its concurrent jurisdiction. Reference may be made to Sh. Zahoor Ahmed v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmed Awan 991 SCMR 322; Rafiq Ahmed Jilani v. The State 1995 PCrLJ 785; Agha Muhammad Jamali v. The State 1997 PCr.LJ 901 and Shamrez Khan v. The State 1999 PCr.LJ

74. Besides it if such an application has been moved before the High Court and it has entertained and granted ad interim bail to the applicant then instead of dismissing it on technical grounds it should have disposed it of on merits".

5. I would like to point out that extra-ordinary relief of pre-arrest bail is meant for innocent persons to save them from humiliation and disgrace at the hands of police. The purpose of this remedy is to protect liberty and reputation of the citizens, particularly in a case where the circumstances reflect that it is a case to be that of further inquiry on the basis of material on record. The power to grant bail under section 498, Cr.P.C., is not additional to or independent to section 497, Cr.P.C., and even while granting pre-arrest bail the provisions contained under section 497, Cr.P.C., are also to be kept in mind. However, the grant of bail or its refusal is essentially a matter of discretion to be exercised judiciously and not arbitrarily, and the facts of each and every case are to be considered separately and independently. The reasonable and plausible ground must exist for grant of bail before arrest. The concept of pre-arrest bail was developed on three presumptions; firstly the accused is presumed to be innocent till he is found guilty, secondly, the accused should have a right to prepare his defence and prove his innocence before the trial Court and thirdly the accused should not be punished before the findings of his conviction rendered by the Court.

6. The Hon'ble Supreme Court in the case titled as Muhammad Jahangir Khan and others v. The State and others, 2020 SCMR 1270 has held that: "keeping in view the facts and circumstances narrated above, it has made it abundantly clear that while granting pre-arrest bail, Court can consider the merits of the case in addition to element of mala fides/ulterior motives which has to be adjudged in the light of law laid down by this Court in the case law stated supra. As a consequence, courts of law are under bounden duty to entertain broader interpretation of "law of bail" while interpreting material placed before it in more liberal manner to arrive at a conclusion which is badly required due to apparent downfall in the standard of investigation. Otherwise liberty of a person is a precious right which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973. To abridge or curtail the liberty merely on the ground of being involved in a criminal case without adjudging it on merits would certainly encroached upon the right against free life. This right should not be infringed, rather has to be protected by the act of Court otherwise it may frustrate the concept of safe administration of criminal justice. The accumulative effect of the whole discussion and while seeking guidance from the above referred case law, this Court is of considered opinion that the petitioners have made out a case for grant of extraordinary relief of pre-arrest bail, hence are squarely entitled for the same."

7. The allegation in the FIR as well as in the statements recorded under section 161, Cr.P.C., of the eyewitnesses are that the co-accused Gul Ahmed made firing upon the deceased, who received injuries and later on succumbed to the injuries and the co-accused Master Raheem Jan made firing upon Manzoor Ahmed, who received injuries. A specific role has been attributed to the co-accused who allegedly made firing upon the deceased and the injured witness, whereas the accused/applicant has neither caused any injury to the deceased or for that matter to the injured eyewitness nor such allegations are available on record that he made any conspiracy with the principal accused and prima-facie there is also no evidence on record that at the instigation or abetment of the accused/applicant the co-accused made firing upon the deceased and the injured witness. Under such circumstances, the case against the accused/applicant comes within the ambit of further inquiry. Reliance is placed on the case titled as Abdul Ghafoor v. The State and another (2020 SCMR 961) and Babar v. The State (2020 SCMR 761). The co-accused Gul Hassan has already been granted bail by this court vide order dated 03.06.2020 passed in Criminal Protective Bail Application No.(S) 47 of 2020, therefore, the rule of consistency is applied to the case of the present applicant which would entitle him for the same relief. Keeping in view the facts and circumstances of the case and material placed on record, I am confident that the applicant has made out a case of further inquiry and deserved confirmation of ad-interim pre-arrest bail. For the reasons stated herein above, I am inclined to confirm the interim pre-arrest bail, already granted to the applicant/accused on the same terms and conditions. Needless to say that the observations are tentative in nature, which shall not prejudice the case of either side on merits nor the trial Court shall be influenced by the same during course of trial. Bail confirmed. SA/253/Bal. Pre-arrest bail granted.