P L D 1986﷓Karachi 633 (PLP)

"The criteria laid down in Hidayatullah Khan's case has not undergone any change so far. The three principles laid down therein have to be strictly followed. This power should sparingly be exercised in appropriate cases. The Courts should strictly avoid the exercise of this power at random, which is likely to embarass the prosecution in investigation as usually is the general complaint. The balance has to be kept and each case has to be dealt with on its own merits . . . . . . The Court should seriously apply its mind before passing the order of pre‑arrest bail. I must, however, make it clear that Courts are the guardians of liberty, of citizens. The abuse of power by the police to rope in innocent persons in order to humiliate them and to cases irreparable loss to their reputation should be equally kept, in view. The golden principles in Hidayat Ullah Khan's case, must strictly be followed." It is argued by the learned counsel for the respondent that the respondent in application for bail in grounds Nos. 9 and 10 has alleged male fide and harassment against the police. These grounds read as under :‑ "

9. That the police won over by the complainant party, so complainant in collusion with police has fabricated this case due to motives.

10. That in case the applicant is arrested he will be humiliated by police and some incriminating articles should be foisted upon him." It is further submitted by learned counsel for the respondent that the Sessions Court in its order has also observed "this is case of further inquiry and if in these circumstances the applicant is arrested, he will be humiliated for ulterior motive by police at the instance of complainant." The conditions as laid down by the Supreme Court for the grant of pre‑arrest bail do not require mere allegation of male fide and harassment on the part of police or the complainant by the accused person but also requires the accused person to satisfy the Court that he is being arrested for ulterior motives. No doubt the respondent has in the application alleged that be is being arrested for ulterior motive for the purpose of humiliating him but he has not shown as to what are the ulterior motives which prompted the complainant or police to arrest him. The mere fact that police arrests or attempts to arrest the person who is accused of committing or participating to the commission of murder and against whom there is ocular or other evidence would not amount to arrest for ulterior motive to harass or humiliate him. As a matter of fact the police is expected to arrest a person in such circumstances. The learned Sessions Judge also has given such finding. His finding is based on the ground that it was a case of further inquiry and if under the circumstances the applicant was arrested, he will be humiliated for ulterior motive by the police at the instance of complainant. The conditions of pre‑arrest bail as laid down in above cases do not make the ground of further inquiry as one of the conditions for pre‑arrest bail. The learned counsel for the respondent has argued that the respondent has remained on bail for one year and as such it will not be proper or equitable to cancel his bail. It may be pointed out that the bail was granted to the respondent on 20‑8‑1985 whereas application for cancellation of bail was filed by the complainant in this Court on 19‑9‑1985. This application cannot be said to have been filed with undue delay. In this respect it will be pertinent to refer to the observations of their Lordships of the Supreme Court in case of Ziaul Hasan v. ‑The State (P L D 1984 S C 192.) which are as follows :‑ "Held, there was no rigid rule regarding the period whereafter bail should not be cancelled. It might become relevant in some cases but no hard and fast rule can be laid. It depends upon the circumstances of each case, In a given case notwithstanding long passage of time after the grant of bail, the circumstances might justify the cancellation not only on ground of propriety but alternatively on the ground of it being duty under the law. Abscondence and/or otherwise misuse of the concession can be examples for the former. While an illegal order of bail or total lack of awareness of the facts and or the law involved are examples for the latter. Petitioner did not mention any fact to suggest that the arrest in this case would be male fide. The High Court indeed was fully justified to interfere with the illegal order brought before it for scrutiny, 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." The learned A. A.‑G. also attacks the impugned order on the ground that learned trial Court has not taken into consideration the factum of abscondence of accused. He has relied upon the case of Awal Gul v. Zawar Kkoe and others (P L D 1985 S C 402) wherein their Lordships have observed :‑ "In proper cases, even at the trial, abscondence can be treated as a very important piece of evidence (as corroboration of eye‑witnesses) on showing the conduct of the accused. A fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. Unexplained noticeable abcondence disentitles a: person to the concession of bail notwithstanding the merits of the case‑the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost of or is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law). The explanation that people some time abscond for fear of being killed in retaliation is too wide to be accepted. It will be only in exceptional circumstances that when whole material for such a situation is analysed and apprehension is treated as absolutely well‑founded that it might be so treated. Actually (ordinarily) the arrest and custody with the law enforcing agency furnish a better chance of protection than remaining at large and making oneself available always to the adversaries." The learned counsel for the respondent hag argued that the respondent cannot be considered as absconder because no proclamation as such was issued against him by the Court and that he has explained his absence by stating that he had gone to Quetta in connection with business, I find that this aspect of the case has not been considered by the learned trial Court. As such t refrain to give any findings on this point as it may prejudice the case of the respondent at the time of trial or any application that he may move for bail after arrest. However, the fact remains that the pre‑arrest bail has been granted to the respondent in disregard of the condition as laid down by their Lordships of the Supreme Court in the above‑mentioned cases. As such the order cannot be sustained pre‑arrest bail granted to the respondent is, therefore, cancelled. s they respondent is not present in Court, the trial Court is directed to issue necessary process for the arrest of the respondent. It may be added that the observations made in this order are of tentative nature and would not prejudice the case of the respondent. M. Y. H. Bail cancelled.