2022 PLP 74 (YLRN)

ABDUL HAMEED BALOCH, J.

Through this order I intend to dispose of above pre-arrest bail application filed by the applicant in case FIR No. 28 of 2019, registered under Sections 302, 147, 148, 149 Pakistan Penal Code (P.P.C.) with Levies Thana Muslim Bagh District Killa Saifullah.

2. Precise facts of the case are that on 8th December, 2019, at 5:10 p.m. case FIR No. 28 of 2019, under Sections 302, 147, 148, 149, P.P.C. was registered with Levies Thana Muslim Bagh District Killa Saifullah on the written report of complainant Abdul Rehman alleging therein that on the said date the complainant along with Saifullah and Muhammad Khalid were going from Wacha Takai Mine to Camp Mine, at about 4:40 p.m. when they reached Post Gozai the accused persons Asimullah, Zia-ur-Rehman, Nasrullah, Muhammad Wali, Habaitullah and eight other unknown persons duly armed were standing there with three vehicle. The accused persons signaled the vehicle to stop on which Muhammad Khalid stopped the vehicle and alighted from the vehicle when Muhammad Wali levies employee made firing on which Muhammad Khalid started running towards back side. Meanwhile Asimullah made firing with Kalashnikov on Muhammad Khalid on which he fell on the ground. Thereafter, the accused fled away from the spot, whereas Muhammad Khalid succumbed to his injuries. With these averments FIR was chalked.

3. After registration of case the applicant approached this court for grant of protective bail which was granted to him by this court for fifteen (15) days vide order dated 31st March, 2020. Thereafter, the applicant approached Sessions Judge, Killa Saifullah for grant of pre-arrest bail which was rejected on 9th July, 2020. Hence the applicant is before this court for the same relief.

4. The learned counsel for the applicant contended that the applicant has been implicated in the instant case with mala fide intention and ulterior motive just in order to humiliate and harass him. There is cross version. The applicant/ accused submitted an application under Section 22-A Criminal Procedure Code (Cr.P.C.) for registration of the FIR, which was allowed by Sessions Judge/Ex-officio Justice of the Peace Killa Saifullah vide order dated 9th July, 2020, but still the investigating officer did not record the version of the applicant/accused due to high handedness of complainant. The ocular and medical evidence is in conflict. The prosecution has failed to record statement of independent witnesses from the locality. Mere heinousness of crime is no ground to refuse bail. The applicant/ accused has never been absconded. Even otherwise there is no ground for refusal of bail. There is enmity existed between the parties, therefore, false involvement of the applicant/ accused could not be ruled out. The learned counsel placed reliance on Saqib v. The State 2020 SCMR 677, Abdul Nafey v. The State 2019 YLR 183 [Balochistan], Mst. Sobia Saghir v. The State 2017 PCr.LJ 819, Muhammad Fayyaz v. The State 2020 PCr.LJ 73 [Lahore], Adrees Ahmed v. Zafar Ali 2010 SCMR 64, Syed Darbar Ali Shah v. The State 2015 SCMR 879, Awal Khan v. The State 2017 SCMR 538, Ali Sheharyar v. The State 2008 SCMR 1448, Muhammad Faisal v. The State 2020 SCMR 971, Attaullah v. The State 2020 SCMR 451 Ehsanullah v. The State 2012 SCMR 1137, Ikram-ul-Haq v. Raja Naveed Sabir 2012 SCMR 1273 and Qamar alias Mitho v. The State PLD 2012 SC 222.

5. The learned counsel for the complainant stated that the applicant/ accused is duly nominated in the promptly lodged FIR. The occurrence took place in broad day light. The accused and complainant are brothers. There is no chance of mistaken identification. The complainant and ocular witnesses have nominated the applicant/accused with specific role. The recovery is yet to be effected. He placed reliance on Muhammad Hanif v. The State 2013 PCr.LJ [ Sindh] 1105.

6. The learned State Counsel supported the contention of learned counsel for the complainant.

7. Heard and perused the record. The applicant/accused was admitted to pre-arrest bail vide order dated 15th April, 2020. After hearing the learned trial court i.e. Sessions Judge, Killa Saifullah vide order dated 9th July, 2019 re-called its order dated 15th April, 2020 and rejected the application. The applicant/accused escaped from the court and filed instant application for grant of pre-arrest bail. The record reveals that the applicant/ accused has been nominated in the FIR registered by the complainant on 8th December, 2019 immediately after the occurrence. The powers available to the court under Section 498, Cr.P.C. are discretionary which must be exhausted with care and caution especially in cases of heinous offence involving death penalty, imprisonment for life or imprisonment for ten years. The court has to exercise the power judicially and not arbitrarily. The anticipatory bail under Section 498, Cr.P.C. being extra ordinary relief is granted on extra ordinary grounds. It is settled principle of criminal law that pre-arrest bail should not be allowed in routine matters. The applicant/ accused has been nominated in the FIR with specific and clear role of commission of the crime. In Rehmatullah's case PLD 2008 Karachi-170 it is held: "

There is vast difference in grant of bail before arrest and after arrest. Bail before arrest can be granted in extraordinary circumstances where prima facie it appears that there is mala fide on the part of prosecution or accused might have been involved falsely. In the present case the names of both the accused persons appear in the FIR. Their role has clearly been described by the complainant in the FIR. They had come armed with TT pistols along with other accused persons after the first incident in furtherance of their common object; therefore, section 149, P.P.C. is very much applicable in the case. As far as delay of few hours in lodging the FIR is concerned it has been clearly explained in the FIR by the complainant. The accused persons after registration of the case did not join the investigation and were shown as absconders in the challan."

8. The Honorable Supreme Court of Pakistan in case Ghulam Farooq Channa v. Special Judge ACE (Central-I) Karachi PLD 2020 SC 293 held: "

4. Grant of bail to an accused required in a cognizable and non-bailable offence prior to his arrest is an extraordinary judicial intervention in an ongoing or imminent investigative process. It clogs the very mechanics of State authority to investigate and prosecute violations of law designated as crimes. To prevent arrest of an accused where it is so required by law is a measure with far reaching consequences that may include loss or disappearance of evidence. The Statute does not contemplate such a remedy and it was judicially advented way back in the year 1949 in the case of Hidavat Ullah Khan v. The Crown (PLD 1949 Lahore 21) with purposes sacrosanct and noble, essentially to provide judicial refuge to the innocent and the vulnerable from the rigors of abuse of process of law; to protect human dignity and honour from the humiliation of arrest intended for designs sinister and oblique. The remedy oriented in equity cannot be invoked in every run of the mill criminal case, prima facie supported by material and evidence, constituting a non-bailable/cognizable offence, warranting arrest, an inherent attribute of the dynamics of Criminal Justice System with a deterrent impact; it is certainly not a substitute for post arrest bail."

9. The applicant/accused has assigned specific role of firing. Prima facie sufficient evidence available on the record to connect the applicant/accused with commission of the offence. The applicant has failed to make out a case for false involvement. The crime weapon is yet to be recovered. The court cannot interfere in the investigation. Reliance is placed on the case of Ghani Khan v. The State 2020 SCMR

594. It was held therein: "

2. After hearing the learned counsel for the petitioner, learned counsel appearing on behalf of the State and perusal of available record, it has been observed by us that the petitioner is named in the FIR with specific role of firing at the complainant Hazrat Ullah, which as per the statement of the complainant, hit him on his right thigh and right side of his chest. The said allegation is prima facie supported by the medical evidence. The offence alleged against him falls within the prohibitory clause of section 497(2) Code of Criminal Procedure. In these circumstances he is not entitled to the concession of bail."

10. Deeper scrutiny of evidence is not permissible or desirable. The assessment of evidence is tentative in nature. The case laws cited by the counsel for the applicant are distinguished and most of them are related to post arrest bail. In view of the above the order passed by this court on 14th July, 2020 is hereby recalled and pre-arrest bail application is rejected. JK/179/Bal. Application rejected.