2020 PLP 783 (MLD)

ROZI KHAN BARRECH, J.

This order disposes of Criminal Bail Before Arrest Application No.296 of 2019 whereby the applicant namely Ameer Bakhsh son of Arz Muhammad is seeking bail before arrest in FIR No.61 of 2019 was lodged with City Police Station Dera Murad Jamali under sections 302, 109, 37, P.P.C.

2. Facts of the case are that the complainant Inayatullah son of Mir Hassan lodged FIR No.61 of 2019 with the allegation that his brother Liaqat Khan along with his relatives Phattan and Abdul Sattar came from Gandawah at Dera Murad Jamali, at about 1:20 a.m., and while they were present at Shah Pump suddenly accused Shah Nawaz, Gul Hassan, Sher Muhammad alias Shero sons of Imam Bakhsh come on two motorcycles duly armed with TT pistol and made firing upon his brother Liaqat Khan who received injuries and later on succumbed to the same. It is further alleged in the FIR that the accused committed murder of his brother Liaqat Khan at instigation of the Ameer Bakhsh and co-accused Irfan.

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 11.06.2019.

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 discuss the objection taken by the learned State Counsel 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. Admittedly, tribal enmity exists between both the parties and the accused/applicant also filed an application under section 526, Cr.P.C. for transfer of case from Dera Murad Jamali to another District vide Criminal Bail Application No.126 of 2018. thus, a genuine reason exists in favour of the accused to directly 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 1991 SCMR 322; Rafiq Ahmed Jilani v. The State 1995 PCr.LJ 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. At this stage, 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 citizens, particularly in a case where the circumstances reflects 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 is to be considered separately and independently. 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 allegation in the FIR as well as in the statement under section, 161 Cr.P.C., of eye-witnesses Phattan Khan and Abdul Sattar are that the co-accused committed murder of the deceased Liaqat Khan at the instigation of the accused/applicant Ameer Bakhsh. A specific role has been attributed to the co-accused who allegedly made firing upon the deceased, whereas neither the accused/applicant was present at the time of occurrence nor such allegation are available on record that in his presence the accused/applicant made any consultation or 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.

7. So, I have no hesitation in mind to hold that the charge against the accused/applicant is that he instigated principal accused and there is no direct evidence against him. In such circumstances, in my view there appears no reason to decline the bail to the person who admittedly at the time of incident was not present at the spot. 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 deserves confirmation of ad-interim pre-arrest bail. For the reasons stated herein above, I 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/106/Bal. Bail confirmed.