2007 PLP 1159 (YLR)

ASIF SAEED KHAN KHOSA, J.

Through this petition Shafqat Hussain petitioner has sought pre-arrest bail in case F.I.R. No.257 registered at Police Station Chenab Nagar, District Jhang on 3-6-2006 in respect of offences under sections 452/ 337-A(i)/337-F(i)/337-H(2)/337-L(2)/148/149/171, P.P.C. During the investigation sections 148, 149 and 171, P.P.C. have been deleted from the F.I.R. and the same have been substituted by section 34, P.P.C. Earlier on the petitioner had approached the Court of Session, Jhang for the same relief but his application in that regard was dismissed by the learned Additional Sessions Judge, Chiniot, District Jhang vide order dated 23-9-2006. Hence, the present petition before this Court.

2. After hearing the learned counsel for the parties and going through the record it has been observed by me that according to the F.I.R. the petitioner had accompanied his co-accused to the place of occurrence and had joined them in perpetrating the alleged offences but no specific or particular role individually played by the petitioner in the entire transaction had been specified in the F.I.R. The allegations levelled against the petitioner in the F.I.R. are couched in generalized and collective terms. It is pertinent to mention here that, the petitioner's name had not figured in the F.I.R. but during the investigation the accused person nominated in the F.I.R. as Safdar son of Riaz was said to be in fact the present petitioner whose name is Shafqat Hussain son of Riaz Ahmad. Apparently the petitioner does not stand directly connected with the motive set up in the F.I.R. Admittedly there is a background of bitterness between the parties over the issue of a marriage of a girl and, thus, the submission of the learned counsel for the petitioner regarding mala fide implication of the petitioner in the case in hand has been found by me to be a submission which may not be without any foundation or substance. The record of investigation of this case shows that the petitioner has already joined the investigation. It has been argued by the learned counsel for the State that the weapon of offence is yet to be recovered from the petitioner's possession and, thus, he is not entitled to be admitted to pre-arrest bail. I have, however, remained unable to subscribe to this submission as the F.I.R. shows that the petitioner had not resorted to firing at the spot and, thus, any recovery of a fire-arm from the petitioner's possession is likely to be legally inconsequential. It has already been held by this Court in the case of Muhammad Sharif v. The State (PLD 2004 Lahore 511) that pre-arrest bail may not be refused to an accused person only and merely for the purpose of facilitating the police to effect a recovery from him if such recovery is likely to be otherwise legally inconsequential.

3. It may not be out of place to mention here that two co-accused of the petitioner namely Imran and Saqlain have already been admitted to post-arrest bail by this Court vide order dated 17-10-2006 passed in Criminal Miscellaneous No.7758-B of 2006. On the merits of the case the petitioner has a better case for bail than the said co-accused but the only difference is that the petitioner is seeking pre-arrest bail whereas the said co-accused had been admitted to post-arrest bail. It is, thus, quite likely that in case of dismissal of the present petition for pre-arrest bail the petitioner may immediately become entitled to post-arrest bail on the abovementioned ground. In the case of Muhammad Ramzan v. Zafar Ullah and another (1986 SCMR 1380) it had been held by the honourable Supreme Court of Pakistan that pre-arrest bail of an accused person may not be cancelled where he has a good case for post-arrest bail on the ground of consistency. Similarly in the case of Gulfraz Khan and another v. The State (1991 PCr.LJ Note 42 at p.30) and accused person had been admitted to pre-arrest bail mainly on the ground that a co-accused attributed an identical role had already been admitted to post-arrest bail. In the peculiar circumstances of this case there is no reason why the petitioner may not be treated in the like manner.

4. For what has been discussed above this petition is accepted and the ad interim pre-arrest bail already allowed to the petitioner by this Court vide order dated 18-10-2006 is hereby confirmed subject to furnishing of a fresh bail bond by the petitioner in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the Area Magistrate of Police Station Chenab Nagar, District Jhang within a period of two weeks from today. H.B.T./S-210/L Bail confirmed.