2025 PLP 1394 (YLR)

Farooq Haider, J.

Through instant petition, Muhammad Anwar, Muhammad Farooq, Zain and Akram (petitioners/accused) have sought pre-arrest bail in case arising out of FIR No.560/2024 dated: 29.08.2024, registered under Sections: 452, 354, 148, 149 P.P.C. (learned Deputy Prosecutor General under instructions of police official present before the Court and after himself going through the available record submits that offences under Sections: 337-A(i), 337-L(2) P.P.C. have also been added in this case) at Police Station: City Nankana, District: Nankana Sahib.

2. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the available record with their able assistance, it has been noticed that briefly as per Crime Report (FIR) got recorded by Shazia Yousaf (complainant), Muhammad Farooq (now petitioner No.2 in the instant petition) with blows of stick broke glasses of window of house of the complainant lady, entered into the house while breaking outer door as well as window, raised lalkara, then he with co-accused namely Saqlain and Muhammad Afzal attacked and belabored the complainant, mother of complainant, Yousaf Baig, Yasmeen Bibi, Shahnaz Bibi, Zohaib Baig and Abid Baig, also tore wearing clothes of complainant lady as well as her sister namely Yasmeen Bibi due to which they both became semi-naked whereas Zain (now petitioner No.3 in the instant petition) along with Saqlain co-accused broke chain ( ) of door with hammer and entered into the house of the complainant lady; during the occurrence, mobile phone of complainant lady, mobile phone of Shahnaz Bibi, mobile phone of Zohaib and ornaments of gold of complainant lady (detail is mentioned in the FIR) were forcibly snatched, pots present in the house were also broken, while breaking Almirah, Rs.75000/- were also taken. Aforementioned allegations levelled against Muhammad Farooq (petitioner No.2 in the instant petition) and Zain (petitioner No.3 in the instant petition) have been supported by Medico-Legal Examination Certificate of complainant lady, Yousaf Baig and Yasmeen Bibi. On Court's query, learned Deputy Prosecutor General under instructions of police official (present before the Court) and after himself going through the available record apprises that Yousaf Baig and Yasmeen Bibi (witnesses mentioned above) have supported the case of prosecution through their statements recorded under Section: 161 Cr.P.C. and after thorough investigation, aforementioned allegations levelled against petitioners Nos.2 and 3 have been established and recovery is still to be effected from them. In view of above, sufficient material is available on record to connect Muhammad Farooq (petitioner No.2) and Zain (petitioner No.3) with the commission of alleged offences. Any mala fide, malice or ulterior motive could not be referred against the complainant lady, aforementioned injured persons as well as Investigating Officer of the case to the extent of petitioners Nos.2 and 3 and in absence of the same, pre-arrest bail cannot be allowed; similarly, on the basis of pleas structured upon bald denial and parallel stories pre-arrest bail cannot be allowed; in this regard, case of "Rana Abdul Khaliq v. the State and others" (2019 SCMR 1129) and "Ahtisham Ali v. The State" (2023 SCMR 975) can be referred. Therefore, instant petition to the extent of Muhammad Farooq (petitioner No.2) and Zain (petitioner No.3) is without any merit/substance, thus same is dismissed to their extent and ad-interim pre-arrest bail already granted to them by this Court vide order dated: 23.10.2024, is hereby recalled.

3. Now coming to the case of Muhammad Anwar son of Alla and Muhammad Akram son of Ameer All (petitioners Nos.1 and 4 in the instant petition), they are not nominated in the Crime Report (FIR), however, learned Deputy Prosecutor General under instructions of investigating officer of the case (present before the Court) and after himself going through the available record apprises that they both were nominated as accused in this case through supplementary statement got recorded by complainant on 30.08.2024, however, any source on the basis of which they were nominated as accused in the case is not mentioned in said supplementary statement and said source has not been disclosed by the complainant lady till now; in such state of affairs, evidentiary value of said supplementary statement to the extent of nomination of Muhammad Anwar (petitioner No.1) and Muhammad Akram (petitioner No.4) requires evidential verification; in this regard, guidance has been sought from the case of "Abdul Khaliq v. The State" (1996 SCMR 1553), "Noor Muhammad v. The State and another" (2020 SCMR 1049) and "Lal Marjan and another v. Islam Gul and others" (2021 SCMR 301). Learned Deputy Prosecutor General under instructions of investigating officer of the case (present before the Court) and after himself going through the available record further apprises that even during investigation it has been concluded by the investigating agency that these both petitioners did not take part in the occurrence rather they came there after the occurrence. When all the aforementioned factors are taken into consideration in totality, then reasonable grounds are not available on the record to connect petitioners Nos.1 and 4 with the commission of alleged offences rather case of prosecution against them, at present, requires further probe/inquiry within the purview of subsection: (2) of Section: 497 Cr.P.C., however, even then insistence of the investigating officer for arrest of said both petitioners/accused in the case shows mala fide intention on part of prosecution and they both petitioners are not required to give any other evidence to prove mala fide; in this regard, guidance has been sought from the case of "Shahzada Qaisar Arfat alias Qaiser v. The State and another" (PLD 2021 Supreme Court 708); relevant portions whereof are hereby reproduced: - "4...................The learned High Court did not appreciate that the "mala fide" being a state of mind cannot always be proved through direct evidence, and it is often to be inferred from the facts and circumstances of the case.2" "

6. The power of the High Courts and the Courts of Sessions to grant pre-arrest bail, first and foremost, must be examined in the constitutional context of liberty, dignity, due process and fair trial. Pre-arrest bail is in the nature of a check on the police power to arrest a person. The non-availability of incriminating material against the accused or non-existence of a sufficient ground including a valid purpose4 for making arrest of the accused person in a case by the investigating officer would as a corollary be a ground for admitting the accused to pre-arrest bail, and vice versa.5 Reluctance of the courts in admitting the accused persons to pre-arrest bail by treating such a relief as an extraordinary one without examining whether there is sufficient incriminating material available on record to connect the accused with the commission of the alleged offence and for what purpose his arrest and detention is required during investigation or trial of the case, and their insistence only on showing mala fide on part of the complainant or the Police for granting pre-arrest bail does not appear to be correct, especially after recognition of the right to fair trial as a fundamental right under Article 10A of Constitution of Pakistan, 19736. Protection against arbitrary arrest and detention is part of the right to liberty and fair trial

7. This Court has, in many cases granted pre-arrest bail to accused persons after finding that there are no reasonable grounds for believing their involvement in the commission of the alleged offences and has not required independent proof of mala fide on part of the Police or the complainant before granting such relief. Despite non-availability of the incriminating material against the accused, his implication by the complainant and the insistence of the Police to arrest him are the circumstances which by themselves indicate the mala fide on the part of the complainant and the Police, and the accused need not lead any other evidence to prove mala fide on their part. (emphasis added).

4. In view of what has been discussed above, instant petition to the extent of Muhammad Anwar (petitioner No.1) and Muhammad Akram (petitioner No.4) for grant of pre-arrest bail in the case, is allowed, ad-interim pre-arrest bail already granted to them by this Court vide order dated: 23.10.2024 is confirmed subject to their furnishing fresh bail bonds in the sum of Rs.200,000/- (Rupees two hundred thousand only) each with one surety each in the like amount to the satisfaction of trial court within a period of fifteen days from today.

5. It is, however, clarified that observations made herein are just tentative in nature, strictly confined to the disposal of instant bail petition and will have no bearing upon trial of the case. JK/M-40/L Bail confirmed.