2017 P Cr (PLP)

ASLAM JAVED MINHAS, J.

Through this petition filed under section 497(5), Cr.P.C., the petitioner seeks cancellation of pre-arrest bail allowed to respondent No.2 by the learned Addl. Sessions Judge, Sahiwal vide order dated 09.09.2015 in a case bearing FIR No.443/2013, dated 26.09.2013, under section 302/34, P.P.C. registered with Police Station Harappa, District Sahiwal.

2. The allegation against respondent No.2 as per FIR is that he while armed with sota along with co-accused namely, Muzammal armed with Sarya and Suleman armed with sota committed the murder of brother of the complainant/petitioner.

3. Learned counsel for the petitioner argued that the pre-arrest bail application of the respondent No.2 was dismissed by the learned trial court thrice i.e. on 02.11.2013, 20.12.2013 and 03.03.2014 but was subsequently confirmed on 09.09.2015, thus he remained absconder near about two years which shows that he remained playing hide and seek with the court. He further contended that bail application of the co-accused Suleman with the similar role has been dismissed by this Court through Crl. Misc. No.5961-B/2014 vide order dated 14.11.2014. In support of his contentions, the learned counsel placed reliance on 2015 SCMR 1394. 3(sic.) On the other hand the learned DPG opposed the petition and supported the bail granting order of the learned trial court. He further argued that the respondent No.2 was granted pre-arrest bail by considering all the aspects of the case. He further contended that the learned counsel for the petitioner has failed to point out any mis-using of concession of pre-arrest bail by the respondent No.2 and that there is no ground available for cancellation of pre-arrest bail granted to the respondent No.2.

4. Arguments heard. Record perused.

5. While seeking pre-arrest bail it was the duty of the accused to establish and prove mala fide on part of the investigating agency or the complainant. Bail before arrest could not be granted unless person seeking it satisfies conditions specified under section 497(2), Cr.P.C. and establishes existence of reasonable grounds leading to believe that he was not guilty of offence alleged against him and there were in fact sufficient grounds warranting further inquiry. In this case, the respondent No.2 and co-accused Suleman were assigned role of causing sota blows on the person of the deceased and his presence at the spot is admitted. Further pre-arrest bail of said Suleman co-accused was dismissed by this Court. There is another aspect of the matter that the respondent No.2 filed pre-arrest bail applications thrice before the learned trial court which were dismissed for non-prosecution, thus he remained fugitive from law near about two years. Conduct of the respondent No.2/accused in the present case was sufficient to refuse him relief of pre-arrest. The August Supreme Court in the similar circumstances held that filing of pre-arrest bail petitions again and again amounted to misuse of law and also increased the backlog of the courts, and that such trend had to be stopped by the courts below. In this regard, reference may be made to the case of Muhammad Sadiq and others v. The State and another (2015 SCMR 1394).

6. In view of what has been said above, this petition is allowed with the result that the bail allowed to respondent No.2 namely, Khalid Hussain by the learned Addl. Sessions Judge, Sahiwal vide order dated 09.09.2015, is hereby recalled.

7. However, it is made clear, that the observations made above are tentative in nature and shall not prejudice the trial of the case. WA/M-110/L Petition allowed.