2014 P Cr (PLP)

SHEZADA MAZHAR, J.

Apprehending her arrest at the hands of police, Mst. Waqar-un-Nisa petitioner, seeks her pre-arrest bail in case F.I.R. No.213/2012, dated 14-7-2012, offence under sections 302, 324, 148, 149, 109, P.P.C., registered at Police Station Sadar Kharian District Gujrat.

2. Prosecution case, in brief, as per contents of the F.I.R., is that the petitioner along with other co-accused while armed with fire-arm weapons attacked the complainant party outside the court in Kharaina, they resorted firing on the complainant side hitting one passer-bye namely Iftikhar Ahmad son of Rehman Khan on her right flank, one Ms. Laraib daughter of Adalat Khan on her arm and leg, hitting Sardar Begum widow of Fazaldad on her right leg and hitting Muhammad Nawaz son of Karam Dad on his head, Later on Muhammad son of Karam Dad succumbed to the injuries. Hence, this case.

3. Learned counsel for the petitioner in support of his petition contends that the petitioner has been falsely roped in this case against the actual facts and circumstance by the complainant with mala fide intention in connivance with the local police for satisfying ulterior motives. Learned counsel vehemently submits that after thorough investigating the petitioner has been declared to be innocent and she is not required to police for investigating. Learned counsel further contends that the complainant has thrown a wider net and all the members of the family and close relatives have been involved in the instant case. Learned counsel next submits that such findings of the local police have not been challenged by the prosecution/complainant. It is further contended that there is nothing incriminating against the petitioner, she has been involved due to mala fide intention of the complainant by cooking a false story as she is complainant in case F.I.R. No.99/2010 dated 3-7-2010 under section 302, P.P.C. wherein shaukat injured is the accused. Due to the said case she has been granted protection by the police. Relies upon 2012 SCMR 1137 and submits that she deserves the relief of pre-arrest bail.

4. Conversely learned Deputy Prosecutor-General assisted by learned counsel for the complainant has vehemently opposed this petition on the ground that the petitioner is nominated in the F.I.R. with a specific allegation. It is argued that recovery of weapon of offence is yet to be effected. Learned counsel next submits with vehemence that conduct of the petitioner after obtaining ad interim bail is not above board and her case involving capital charge, she in no way is entitled to the extra ordinary relief of pre-arrest bail.

5. Arguments heard. I have also gone through the record available on file.

6. The only allegation against the petitioner in the F.I.R. is that she was present in the car. Neither she was carrying any weapon nor any fire shot is attributed to her in the F.I.R. Further prima facie mala fide on the part of the complainant is obvious due to the fact that petitioner in the present bail petition is complainant in F.I.R. No.99/2010 dated 3-7-2010 in which Shaukat Hussian, who is the allegedly injured in the instant case is the main accused of murder of mother and father of the petitioner. A detailed inquiry in this regard was conducted and it was clear-cut finding of the Investigating Agency that the petitioner has not participated in the occurrence in any manner. The findings of the police have not been challenged by the complainant before any higher forum. Such findings are on the police record and the learned Deputy Prosecutor General frankly conceded this aspect of the case. As far as the version of the State that this is a pre-arrest bail, which is extraordinary relief and the same has to be granted sparingly is concerned, it is worth-mentioning that no doubt the mala fide is a sine qua non for grant of pre-arrest bail but it is settled principle of law that the court can even look and evaluate the same from the facts and circumstances of the case, which apparently is oozing in this case. Moreover there is abundant case-law for the proposition that apprehension of arrest of an accused being for ulterior motive, for example, that of humiliation and unjustified harassment is a sine qua non for pre-arrest bail. Respectful reliance in this regard is placed on the landmark judgment of the august Supreme Court of Pakistan in the case of Ajmal Khan v. Liaquat Hayat and another (PLD 1998 SC 97). Similar view was affirmed by the apex Court of the Country in the case of Syed Muhammad Firdaus and others v. The State (2005 SCMR 784) in the following terms:-- "Bail before arrest

Principles

Arrest for ulterior motives such as humiliation and unjustified harassment is a valid consideration for grant of pre-arrest bail." Apart from this a person cannot be refuted the premium of bail only on the ground that she is nominated in the crime report. Mere mentioning the name of any person in a murder case does not disentitle her for grant of pre-arrest bail. The Court while deciding the petition can examine the accusations, the report of the Investigating Agency and even can touch upon the merits of the case. Reference in this regard can be made to the cases of Meeran Bux v. The State and another (PLD 1989 SC 347) and Muhammad Riaz Minhas v. The State (1990 PCr.LJ 1353 Lahore).

7. As the petitioner is the complainant of case F.I.R. No.99/2010, therefore, possibility cannot be ruled out that the prosecution has thrown a wider net and involved as many male members of the family. The petitioner having not been assigned any overt act, does not constitute an offence therefore, in opinion of this Court it is a fit case; wherein the Court should come for the rescue of innocent person. Needless to mention that investigation of the case is already complete and nothing is to be recovered from the petitioner.

8. For the foregoing reasons, this Court is of the firm opinion that sufficient grounds exist persuading this Court to allow this petition and confirm ad interim pre-arrest bail already granted to the petitioner in terms of order dated 25-4-2013 subject to her furnishing fresh bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of learned trial Court.

9. Before parting with this order it is, however, made clear that the findings made hereinabove are tentative in nature and meant only for disposal of the petition in hand. These, however, shall have no bar on anybody's case at trial. MWA/W-6/L Bail confirmed.