2025 PLP 2120 (YLR)

Abdul Fayaz, J.

Through this bail cancellation petition, Assad Ullah, petitioner/ complainant, has called in question the order dated 13.11.2024 of the learned Additional Sessions Judge-III, Karak, whereby ad-interim pre-arrest bail earlier granted to the respondent/accused namely Dilawar Khan was confirmed, in a criminal case vide FIR No.726 dated 24.10.2024 registered under sections 352/337-A(iii) P.P.C at Police Station, Latamber, District, Karak.

2. Petitioner/complainant Assadullah, along with his mother Zait-un-Nissa on 04.10.2024 at about 22:30 hours reported the matter to the police in the Police Station that after offering "Maghrib Nimaz", he was going to his house from the mosque when reached the house of his uncle Dilawar Khan, he emerged and on seeing the complainant started beating the complainant with fists and kicks, as a result whereof he got hit on his nose and injured. Dispute over property was alleged as motive for the incident. Delay in lodging the report was explained as firstly the complainant went to KDA hospital for medical treatment. Initially, the above report of petitioner/complainant was reduced into writing vide Naqalmad No.21 dated 04.10.2024, followed by the ibid FIR which was registered after due inquiry.

3. Learned counsel for the parties and learned Addl: A.G for the State have been heard at length and with their valuable assistance, perused the record.

4. The perusal of the impugned order of the learned court below reveals that the grounds made basis for the confirmation of the ad-interim pre-arrest bail already granted to the respondent/accused was nothing more but deeper appreciation of the record which is unwarranted at the bail stage. The learned court below has held the case of accused as one of further inquiry and even did not touch the basic ingredient of mala fide or ulterior motives for false implication of the accused, which is a sine qua non for confirmation of pre-arrest bail. Though, the pre-arrest bail being an extra-ordinary relief, can only be extended in the cases where an accused does not prima-facie appears to have committed a non-bailable offence particularly when only oral allegations are levelled in the FIR. Thus, the learned court below fell into error while passing the impugned order, which calls for the interference of this court. Reliance is placed on Murad Khan v. Fazal-E-Subhan and another State [1983 PLD 82], wherein it was held:- "The foregoing resume of the case-law since 1949 and the recent trend of authority would show that notwithstanding varied facts, this Court always thought it necessary to look for such circumstances which would furnish then assumption that the police was motivated on political considerations or other ulterior reasons, before granting pre-arrest bail. In this case, with respect, it is pointed out that the learned Judge in the High Court failed to notice the principles discussed above. Learned counsel for the respondent remained unable to satisfy us with regard to the condition of mala fide of the intended arrest. It was, therefore, not a fit case for grant of anticipatory bail, though after arrest the petitioner would have been at liberty to urge the point on the basis of which the impugned order was passed. " Similarly, in another case "Sarwar Sultan v. The State and another" [PLD 1994 SC 133], it was held:- "

9. From legal angle, it can be said that there is material difference) between bail after arrest as contemplated under section 497, Cr.P.C. and bail before arrest under section 498, Cr.P.C. In non-bailable offence, an accused is not to be released on bail by the Court, if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life or ten years. Of course it is also provided that bail can be granted on exceptional grounds of age, infirmity and sex and also if there are sufficient grounds for further inquiry and also on the ground of statutory delay. As against that under section 498, Cr.P.C. High Court or Court of Session can grant bail at any stage and this provision is normally used for bail before arrest. In this provision amendment has been made and by Code of Criminal Procedure (Amendment) Act XII of 1976 section 498-A is inserted imposing restriction on grant of bail before arrest to a person, who does not surrender before the Court or against whom no case is registered. Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime. The Court has to keep in view all these factors in order to maintain balance between both parties and would be cautious not to give undue advantage to one party over the other at the stage of investigation. Of course there is no cavil about the proposition that the Court has power to grant bail before arrest in an appropriate case, if the Court is satisfied that is a fit case for grant of such relief within the limits of law also it stated above." Yet, in another case "Muhammad Azam v. The State" [PLD 1996 SC 67], the Hon'ble Supreme Court of Pakistan has held:- "After hearing the learned counsel for the parties and reading the record, we agree with the observation of the High Court that allegations levelled against petitioner are serious in nature the discretion in refusing bail before-arrest to the petitioner has rightly been exercised. The right of pre arrest bail is limited to exceptional and rare cases which are based on mala fide/enmity or where no offence is shown to have been committed on the bare reading of FIR. This is, undoubtedly, not a case from that category. There is, therefore no substance in this petition which is dismissed. Leave to appeal is Refused." Furthermore, in the case "Ashir Wasim Babar v. The State" [2006 SCMR 407], the Hon'ble apex court has held that:- "

8. We have heard learned counsel for the parties and have also gone through the evidence so made available before us. The case was fixed on 25th August, 2005, when the petitioner was not present along with his counsel. However, it was postponed for today's hearing i.e. 26th August, 2005. Learned counsel stated at the bar that he was contesting the elections of Nazim in UC-17 and now he has succeeded in the elections, therefore, he failed to attend the Court on the previous date of hearing. Contesting election openly the office of Nazim by petitioner being an accused for the offence under sections 324/337-A(2) and 337-L(2), P.P.C. itself is an evidence that the authorities, including the Incharge of Police Station Khurrianwala, District Faisalabad and the learned Presiding Officer, etc. has not caused his arrest, knowing well that he is involved in the offence. It seems that petitioner on account of his influence attempted to circumvent the process of law, admittedly for no other purpose but with mala fide intentions, with ulterior motives. Now the question arises for examination, as to whether the petitioner has been involved in the commission of offence with ulterior motives? To answer the proposition, two things are important which are to be kept in mind. Firstly; whether there is, a prima facie, case against the accused-petitioner on the basis of FIR and the material available on record? And secondly; whether with ulterior motives, case has been registered against the petitioner-accused? A perusal of the FIR as well as the medical evidence leads us to conclude that he inflicted injuries with the "Butt" of the pistol on the vital part of the body of complainant i.e. head, confirms the injuries on the head of the complainant. Apparently, this fact itself goes to show that there is no ulterior motive in the registration of the case against the petitioner. As far as the happening of the incident is concerned, it has also not been denied by the petitioner. Although his case is that complainant party had attacked upon him, but this plea has not been substantiated by him through an independent source at this stage.

9. There is yet another aspect of this case which requires consideration i.e., whether any harm will be caused, if the petitioner is arrested. Admittedly, prima facie, petitioner is involved in the commission of offence. The complainant has charged him for the offences under sections 324/337-A(2) and 337-L(2), P.P.C., which also includes an attempt of murder. He had also suffered at his hands, therefore, no harm would be caused if he is arrested. The investigation agency has yet to recover the crime weapon from him, which is not possible unless he is arrested. Therefore, following the law laid down in the case of Muhammad Safdar v. State 1983 SCMR 645, we are of the opinion that he is not entitled for bail before arrest."

5. Be that as it may, there is no mala fide apparent on the record which bespeaks regarding false implication of the accused in the instant case, as such, the very ingredient for the confirmation of pre-arrest is lacking.

6. Resultantly, the instant bail cancellation petition is allowed, the impugned ad-interim pre-arrest bail confirmation order dated 13.11.2024 of the respondent/accused namely Dilawar Khan in case FIR No.726 dated 24.10.2024 under sections 352/337-A(iii) P.P.C, Police Station, Latamber District Karak rendered by the learned Additional Sessions Judge-III, Karak, is hereby recalled. However, the petitioner shall be at liberty to file application for his post-arrest bail which shall be decided by the competent court in accordance with law.

7. These are the detailed reasons of the short order of the even date. JK/95/P Petition allowed.