P L D 2016 High Court (AJ&K) 32 (PLP)

MUHAMMAD SHERAZ KIANI, J.

The captioned revision petition has been directed against the order of Additional Sessions Judge Muzaffarabad dated 05.08.2015, whereby the pre-arrest bail of the accused-respondents was confirmed.

2. Shortly stated facts forming the background of the instant revision petition are that on the application of the complainant/ petitioner an FIR was registered at City Police Station Muzaffarabad on 23.06.2015 stating therein that on 22.06.2015 at 11:00,am accused- respondents, who were armed with deadly weapons along with 6/7 other unknown persons forcibly trespassed into the land Khasra No.2945 min measuring 6 marlas 7 sarsai situated near Neelum Cinema at Madina Market. He had already obtained a status quo order for protection of the aforesaid possession of the land from the Courts of District Judge, Additional District Judge Muzaffarabad and also from this Court vide order dated 04.03.2004, 22.01.2014 and 13.02.2014 respectively. It is further alleged that the application of accused-respondents was refused for the permission of erecting shelters on the said land by the Court. The accused-respondents trespassed into the complainant's land armed with deadly weapons with an intention to kill/hurt to the complainant and other persons working in a nearby office of a TV Channel owned by him situated at Madina Market near Neelum Cinema and also committed theft, mischief and took away 10 bags of cement and other construction material. Rubbish from the suburbs of market was escorted by the accused and scattered all over the land and they also harassed the TV staff and threatened them by using abusive language.

3. On this report, a case under Sections 147, 148, 149, 427 and 506, A.P.C. was registered against the accused-respondents. During investigation, the offences under sections 379, 382, 447, 509 and 511 were added. The accused- respondents moved two separate applications. The learned Court below consolidated both the application and initially allowed interim bail to the accused-respondents which was later on confirmed vide its order dated 05.08.2015, hence this revision petition.

4. Petitioner/complainant argued that the learned trial Court committed grave error while passing the impugned order by completely ignoring the fundamental principles governing the bail matters. He further argued that principle laid down in cases of Murad Khan reported as PLD 1983 SC(Pak) 82, Hadyat Ullah Khan v. Khushi Muhammad and Sidique Ali, reported as PLD 1981 (Lah) 599 and another were violated by the lower Court, anybody committing cognizable offence is to be hand-cuffed is a fundamental principle of criminal law, but if the arrest is being made for ulterior motives, humiliation, unjustified harassment or causing irreparable injury to reputation and liberty or for political consideration or is actuated by malice then, of course, the person likely to be affected by the arrest can invoke the jurisdiction of the competent Courts for getting pre-arrest bail. According to version of the petitioner no such eventuality and factor exist in the present case. The learned Court below wrongly applied the law and arbitrarily gave the concession of bail to the respondents. The accused- respondents are not only nominated in the FIR, but their fullest involvement in the occurrence was also recorded by the footage of CCTV cameras. The petitioner submitted that the learned Court below even did not take the contents of FIR and statements recorded by the witnesses under section 161 of Cr.P.C. into consideration. The offence committed by the accused-respondents under section 382 of APC is punishable with 10 years' R.I and the same falls within prohibitory clause of section 497 of Cr.P.C, as such they are not entitled for concession of bail. Finally, the learned counsel who is also petitioner/complainant prayed that by accepting the revision petition impugned order may be set aside. In support of his contention, the learned counsel referred the following authorities.-

1. PLD 2009 SC 427

2. PLD 1983 SC 82 3. 2012 PCr.LJ 430 4. 1997 MLD 2926 5. 2013 PCr.LJ 1082 6. 2004 MLD 905 7. 2014 SCR 173 8. 2014 SCR 412 (sic) 9. 1999 PLC (C.S.) 115 10. 2003 YLR 410 The petitioner with the permission of the Court also displayed a video recording allegedly made to capture the occurrence.

5. On the other hand, learned counsel for the accused-respondents argued that the learned Court below has righty extended the concession of bail in favour of the accused-respondents which warrants no interference by this Court. Along with the accused-respondents, a number of accused- persons were nominated in the FIR and no injury has been attributed towards the accused- respondents. He further argued that the allegation leveled against the accused-respondents that they were armed with lethal weapons is not correct, they committed no offence they have been implicated falsely in a groundless and fabricated case. There is civil litigation between the parties and complainant with the connivance of police got registered the case to pressurize the respondent. The learned counsel defended the impugned order on all counts. In support of his contentions, the learned counsel cited the following case law;- 1. 2006 PCr.LJ 144. 2. 2005 YLR 842

3. PLD 1999 Lah. 277 4. 2014 PCr.LJ 1512 5. 2014 SCR 916 6. 2014 SCR 234

6. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.

7. It is by now well settled principle of law that at bail stage only the tentative assessment of record, such as FIR, statements of the witnesses recorded under section 161,Cr.P.C. along with other material and defence plea, if any, raised by the accused have to be considered. Deeper appreciation of evidence is not permissible at the stage of bail, however, the order cannot be passed in vacuum.

8. Petitioner mainly argued on the point that the learned trial Court has not passed the impugned order under the guidelines given by the superior Courts in the matter of pre-arrest bail. The learned counsel in this regard mainly relied upon Murad Khan's case reported as PLD 1983 SC (PAK) 82, wherein the Hon'ble Supreme Court of Pakistan held that the condition for grant of pre- arrest bail are, if arrest being for ulterior motives such as humiliation and unjustified harassment, prosecution motivated by motive so as to cause irreparable injury to reputation and liberty, motivation of police on political consideration then pre-arrest bail can be granted. However, it is pertinent to note here that gradually the scope of pre-arrest bail has been widened and pre-arrest bail can be given if the accused satisfies the conditions specified through subsection (2) of section 497 of Cr.P.C. as it is evident from the authority referred by the learned counsel/the petitioner himself reported as PLD 2009 SC 427, wherein the apex Court of Pakistan held in the following words,- "

9. Ever since then, the said interpretation so made, the said powers so found and the parameters so prescribed, have been regularly and repeatedly coming up for scrutiny by the Superior Courts including this Court. But each time the matter was re examined, the same was only re-affirmed. The said concept as it was initially propounded; as it developed and as the same stands today, may be summarized for the benefit of us all as under,- (a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives; (b) pre-arrest bail is not to be used as a substitute or as an alternative for post- arrest bail; (c) bail before arrest can not be granted unless the person seeking it satisfies the conditions specified through sub-section (2) of section 497 of Code of Criminal Procedure i.e unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt; (d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disagree and dishonor him; (e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in enquiry e.g. he had no past criminal record or that he had not been a fugitive at law; and finally that; (f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instance i.e. the Court of Session, before petitioning the High Court for the purpose." (Underlining is mine) According to the above mentioned precedent if the accused satisfy the Court that his case comes within subsection (2) of section 497 of Cr.P.C. and the Court also reaches the conclusion that reasonable ground are available that he is not guilty of the offence and there is sufficient grounds warranting further probe then pre-arrest bail can be granted meaning thereby if from the tentative assessment of evidence collected by the police there is slightest doubt or question of further inquiry arises then there is no bar to Court to grant a pre-arrest bail on the touchstone of the aforementioned guidelines.

9. In the FIR, the allegation against the accused-respondents is that they trespassed into the land Khasra No.2945 min measuring 6 marlas sarsai situated near Neelum Cinema at Madina Market, committed theft and used criminal force threatened the complainant party by showing pistol, caused damage to the building material collected at the spot for construction. A tentative assessment of record and evidence of prosecution witnesses recorded under section 161 of Cr.P.C. and even from the video images allegedly recorded to cover the occurrence, there appears a conflicting and contradictory situation, however, at this stage deeper appreciation is not required by law. Prima facie the case of the accused- respondents requires further inquiry, because; (i) Nothing has been brought on record that when the occurrence was witnessed by the cited witnesses then in what manner and how the heavy load of 10 bags of cement was shifted from the place of occurrence and how the other material was carried? (ii) Admittedly the respondents have purchased the land and the petitioner has filed a suit of pre-emption, so the ownership of the respondents is admitted regarding the place of occurrence and possession is disputed and if a status quo order was issued by the civil Court then who was going to change the nature of the land? (iii) the important questions regarding the alleged motive (dispute of land) are yet to be decided by the civil Court. (iv) From the statements of witnesses recorded under section 161 of Cr.P.C. and video images, the allegation against the accused Rashid of being armed with pistol, prima facie appears to be doubtful. (v) It is not the case of the prosecution that the accused-respondents entered in the office of the staff of the TV Channel (ITV). Some P.W. stated that they went at the place of occurrence to argue with the respondents, so the allegation of harassment is also a matter of further probe. (vi) if the accused exploded some crackers why the empties of those crackers were not taken by the police from there? So all the above questions are yet to be determined and keeping in view the overall circumstances of the case, the possibility of false implication particularly to the extent of the allegation of theft and show of arm cannot be ruled out. However, these observations are only for the purpose of the decision of this revision petition of tentative nature, it would not affect the trial of the case. The rulings referred by the petitioner are not helpful to his case due to distinguishable facts of the present case. I have also gone through the impugned order of the trial Court and found the same to be quite in accordance with law. The learned counsel for the petitioner failed to point out any illegality in the impugned order. It is by now settled principle of law that once a bail is granted by a Court of competent jurisdiction very strong and exceptional grounds are required to cancel the same. Reference can be made from a case titled Zaffar Mehmood v. Muzaffar and another 2014 PCr.LJ 1512 was held that;- "The question of cancellation of bail does not stand on the same pedestal as the rules governing the grant of bail are different than the one applicable for cancellation of bail. Once a bail is granted by a Court of competent jurisdiction, very strong reasons are required for its cancellation." No illegality or irregularity having been found in the impugned order, therefore, the same is allowed to stand. For the reasons listed above, finding no force in this revision petition, it is hereby dismissed. SL/9/AJ&K(HC) Petition dismissed.