1989 P Cr (PLP)

In support of his contentions, he has placed reliance on Muhammad Safdar v. State 1983 S C M R 645, Ashraf v. State 1978 P Cr. L J 903, Nazra and 5 others v. State 1977 P Cr. L J 480, Bashir v. The State 1979 P Cr. L J Note 108 at p.69 and one unreported order passed in Criminal Bail Application No. 1047 of 1983 by a former Chief Justice of this Court. In the first case it has been observed by the Hon'ble Supreme Court that `bail before arrest is not the rule in cognizable offences and is to be allowed only when it can be shown that the petitioner apprehends arrest due to some ulterior motives on the part of the authorities or other influential persons or there are some peculiar features of the case which would justify the exercise of this discretionary power by the High Court or the Sessions Court." In the second case it was observed by a learned Single Judge of the Lahore High Court that remedy of pre‑arrest bail which is no doubt exceptional should not be withheld if possibility of false involvement of the accused which is likely to cause irreparable injury to his dignity, respect and reputation is not ruled out " In the third case a learned Single Judge of Lahore High Court observed that only ineffective firing is attributed to four petitioners and so the interim bail already allowed to the petitioners was confirmed. In the fourth case a learned Single Judge of Lahore High Court relied on the observations of the Hon'ble Supreme Court in Sardar Muhammad and others v. The State 1977 S C M R 326 that remedy of pre‑arrest bail which is no doubt an exceptional measure should not be withheld if possibility of false involvement of the accused which is likely to cause irreparable injury to his dignity, respect and reputation is not ruled out and granted pre‑arrest bail to the two accused who were attributed ineffective firing. The unreported order, dated 9‑1‑1984 passed by a former Chief Justice of this Court reveals that he granted bail on the, facts coming to light that the F.I.R. did not show as to who actually caused the injury to the complainant Rashid and that there appeared a dispute between the parties on account of pending litigation. Learned A. A. G. also conceded to the order granting bail. Mr. Zawar Hussain Jeffery, learned A. A. G. on the other hand submits that the case argued by the learned counsel for the applicants is purely on merits. There is no allegation of ulterior motive made either in the Court of Session or this Court itself which is a most important ingredient while granting bail before arrest as observed in Murad Khan v. Fazal‑e‑Subhan P L D 1983 SC

82. Reliance is also placed by the learned A. A. G. on Zia‑ul Hasan v. State P L D 1984 SC 192 and one of my judgments reported as Lashkari v. State 1987 P Cr. L J 1333. Learned counsel for the applicants, however, seems to be unaware of the latest law laid down by the Supreme Court with regard to granting bail before arrest or inadvertently failed to bring forth the said law or lacks in moral courage in producing the said law before this Court. If it is a case of unawareness, I would like to reproduce the relevant paragraph from the abovesaid two judgments of the Hon'ble Supreme Court. P L D 1983 S C 82: "As already observed, it has been reiterated in earlier noted cases that the condition of arrest being for ulterior motives, for example, that of humiliation and unjustified harassment is a necessary condition for pre -arrest bail. It would not be out of place to notice another case Rao Qadeer Khan v. The State P L D 1981 SC 93, wherein indiscriminate grant of anticipatory bail was commented upon as follows: We are also in agreement with the learned Courts below that the conduct of the petitioner by making repeated applications for anticipatory bail, trying to gain advantage thereunder and then absenting for periods of time, amounted to abuse of the process of law and Court." P L D 1984 SC 192(194): "In this case not only that the learned trial Judge was unaware of this aspect of the case but also the order shows lack of awareness of the basic law about the pre‑arrest bail as distinguished from the bail after arrest. The Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts from time to time are satisfied, the most essential of them all being that the intended arrest would be tainted with mala fides which must be specifically stated. It is in this context also that the other condition of irreparable loss is to be viewed. Learned counsel appearing before us did not mention any fact to suggest that the arrest in this case would be mala fide. The High Court indeed was fully justified to interfere with the illegal order brought before it for scrutiny." As to the ulterior motive, however, learned counsel for the applicants submits that the granting of bail to other five accused by the learned Sessions Judge would mean that the plea of mala fide has been accepted by the learned Judge. I regret, the submission of the counsel is ill‑founded inasmuch as there is no such submission, before the learned Sessions Judge regarding ulterior motive, as the order is completely silent about it. Learned counsel for applicants now submits that he has taken the ground of mala fide in para. 4 of his application for bail before arrest moved in this Court. It may be stated that there is no material at all either referred to or produced during the course of arguments to show at least prima facie, that there is mala fide on the part of the police. In fact, the counsel has not said a word before me except referring to ground No. 4 of the application containing the allegation of mala fide. Hence the plea is rejected as devoid of any substance. For the above‑said reasons the application is dismissed. M.B.A./T‑45/K Application dismissed.