1995 PLP 782 (MLD)

(iii) that if there was: an element of mens rea petitioner who was allegedly armed with a pistol could have used the same as none prevented him from doing so; (iv) that Saboor, the principal accused has a background of insanity inasmuch as he was admitted in Government Mental Hospital, at Lahore in the year 1984. There is a letter from the Medical Superintendent, Government Mental Hospital, Lahore to Mr. Muhammad Ashraf Kazmi, Illaqa Magistrate, District Rahim Yar Khan (Annexure C) to the effect that the said accused remained under treatment of Dr. Habib Ullah Chaudhry Consultant Psychiatrist of the said Hospital; (v) that the petitioner was declared innocent by the D.S.P. who investigated the case and vide his Zimni dated, 23‑11‑1994 petitioner's plea of alibi was prima facie found to be correct; (vi) that the petitioner admittedly joined investigation and nothing was recovered from him. No useful purpose would be served if he is sent behind the bar; (vii) that the licensed pistol of the 'Petitioner was deposited with Wali Brothers as he moved an application to the D.C. in July, 1994 that his armed licence may be cancelled. A photo copy of the receipt issued by Wali Brothers Armed Dealers, Rahim Yar Khan has been placed on record. Reliance is placed on PLD 1989 Lah. 507, 1988 SCMR 1223, 1989 SCMR 347, 1990 PCr.LJ 278, 1992 PCr.LJ 2086, PLD 1993 Lah. 500 and 1994 PCr.LJ 2523.

4. Learned counsel for the complainant on the other hand, has opposed the prayer for confirmation of pre‑arrest bail and has submitted as follows:‑‑‑ (i) That four prosecution witnesses have supported the prosecution story qua involvement of the petitioner and he is not entitled to extra ordinary concession of pre‑arrest bail; (ii) that on 10‑10‑1994, the day F.I.R. was lodged, statements of Allah Rakha and Munawar Khan (P.Ws.) were recorded which are to the effect that they heard Saboor Khan accused saying in the presence of the accused/petitioner that the complainant party had insulted them whereupon Ubaidullah accused and Jalil petitioner exhorted Saboor Khan to kill every child of the complainant party and they will face the case and secure his release; (iii) that the police has to recover pistol from the petitioner; (iv) that the petitioner is connected with the motive part of the prosecution story and he is not entitled to bail. Reliance is placed on 1985 PCr.LJ 1251; NLR 1993 Cr.LJ 250, 1993 PCr.LJ. 2410, 1977 PCr.LJ 513 and PLD 1983 SC 82.

5. Learned counsel for the State also joins learned counsel for the complainant in opposing the prayer for bail. According to him, the police has yet to recover pistol which the petitioner was allegedly carrying when he was standing in the street.

6. I have heard learned counsel for the parties and have also perused the record.

7. The principles for grant of pre‑arrest bail have been commented upon by the Hon'ble Supreme Court as also this Court in several judgments a reference to which have been made by learned counsel on both sides. An exhaustive list of the principles may not be possible here as much depends on the facts and circumstances of each case. However, some of these principles can be deduced from the case‑law cited above and these are:‑‑‑ (i) the apprehension of imminent arrest; (ii) the accused seeking pre‑arrest bail should have surrendered to the Court; ' (iii) there is an apprehension of arrest on account of ulterior motives of either complainant or the police which may lead to humiliation; (iv) that the case should be otherwise fit for the grant of bail in the light of the consideration spelt out from section 497, Cr.P.C.; (v) that although no specific mala fides is brought on record yet, it should be a case which prima facie does not connect the petitioner with the alleged offence.

8. I have also gone through the case diary dated 23‑11‑1994 wherein the D.S.P./S.D.P.O. after making necessary queries from persons appearing on behalf of both the parties have opined that according to his investigation, the petitioner was not present at the spot at the time of the alleged occurrence. He further stated that Ubaidullah and Jalil Ahmad petitioners were prima facie innocent and their names were directed to be placed in column No.2 of the challan. The allegation against the petitioner is that he alongwith Ubaidullah accused were standing outside the house of the complainant and when the complainant attempted to apprehend Saboor Khan accused, they threatened the complainant with dire consequences. The petitioner was allegedly armed with deadly weapons. In case he shared any intention with Saboor Khan co‑accused there was nothing to stop him from going inside the house or from using the lethal weapon that he was carrying. The D.S.P. has accepted petitioner's plea of alibi and has found him prima facie not present at the spot at the time of the alleged occurrence.

9. The factum of ill‑will between the parties stand admitted by the complainant as he has alleged in the F.I.R. that petitioner's father and his sons used to tease him as to why he had purchased the plot in question. He has also referred to a Punchayat having been convened to effect settlement but he alleges that despite settlement Saboor Khan accused used to harass him and his brother Abdul Hafeez Khan. In the background of mutual ill‑will, possibility of petitioner's false implication with a view to avenge the old sore cannot be ruled out. The bona fide of the complainant's desire to implicate the petitioner and secure his arrest is not free from doubt. The case file also reveals that the petitioner remained associated with the investigation for quite some time and the alleged pistol was not recovered from him as a matter of fact, the police declared him innocent. In fact, there is nothing in the file to show that petitioner is required by police for further investigation. The ground being agitated by learned State Counsel therefore would not be of much help to the prosecution case. In a case reported in 1988 SCMR 1223 (Raza v. The State) at page 1225 the Hon'ble Supreme Court granted pre‑arrest bail as: "It clearly appears that the evidence so far collected by the prosecution requires further inquiry in order to connect him with the crime. The petitioner had specifically asserted that he was falsely implicated in the case due to departmental intrigue and conspiracy so as to harass and insult him. No burden is cast on him at this stage and in these proceedings to prove these allegations. In fact, burden does not lie on him at any stage to prove his innocence. A valid and proper case for grant of pre‑arrest bail is therefore made out:" In yet another case reported in PLD 1989 SC 347 (Meeran Bakhsh v. The State) the Hon'ble Supreme Court restored pre‑arrest bail of the accused/petitioner therein which had been cancelled by the High Court and in that case the plea of alibi was also raised. In Meeran Bakhsh case, the accused was attributed a gun‑shot which allegedly hit the deceased on the leg.

10. In the present case, petitioner/accused has specifically averred in paras. Nos.5 and 7 of his petition for pre‑arrest bail moved before the learned Sessions Court that:‑‑‑

11. As no overt act has been attributed to the petitioner, he has been declared innocent by the police, the bona fides of his involvement in the alleged offence is not free from doubt, as his apprehended arrest may entail his humiliation and for reasons referred to in the foregoing paras. Petitioner has made out a case for pre‑arrest bail. The pre‑arrest bail already granted by this Court vide order dated 7‑11‑1994 is hereby confirmed. N.H.Q./J‑89/L Interim pre‑arrest bail confirmed.