2002 PLP 13 (YLR)

3. On the other hand, learned counsel for respondent No.l submits that principles for cancellation of bail are different and that once bail has been allowed, it can be cancelled only in very special circumstances. In this connection, he relied on Government of Sindh v. Raees Farooq (1994 SCMR 1283) and Mazhar Mehmood v. Basit and another (1997 SCMR 915). He further urged that the medical evidence did not support the complainant's version, therefore, it would be a case of further inquiry. Relies on Haji Maa Din and another v. The State and another (1998 SCMR 1528).

4. There is considerable weight in the argument raised by the petitioner's learned counsel. It appears that the Trial Court was not even conscious of the elementary, condition for grant of pre-arrested bail that the accused was going to be arrested with mala fide intentions and ulterior motives on the part of the complainant party and the Police. The learned counsel for respondent No.l pointed out that in the bail petition respondent No.l had raised the plea of mala fides. He read out the grounds of the bail petition available with him in which it was generally stated that- respondent No.1 was ought to be arrested with mala fide intentions and ulterior motives but no specific facts or details regarding the alleged mala fides or ulterior motives were given. Moreover, this ground does not appear to have been agitated before the Court below as it has not been dealt with in the bail granting order dated 17 9-2001. It was laid down in the Full Bench's case reported as Hidayat Ullah Khan v. The Crown (PLD 1949 Lahore 21) that to admit an accused to anticipatory bail not only good prima faciey ground should be made out but also that arrest would be from ulterior motives. The relevant part of the judgment reads as under:- "The exercise of the power should, however, be confined to cases in which, not only is good prima facie ground made out for the grant of bail in respect of the offence alleged, but also it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such eventuality suffer irreparable harm." In the case of Ali Muhammad v. Yamin and another (1981 SCMR 1139), it was held that in order to justify grant of pre-arrest bail the petitioner must show that he apprehends his arrest on account of ulterior motive. In the case of Zia-ul-Hassan v. The State (PLD 1984 SC 192), it was held as under:-- "In this case not only that the learned trial Judge was unaware of this aspect of the case but also the order shows lack of awareness of the basic law about the pre-arrest bail as distinguished from the bail after arrest. The Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts from time to time are satisfied, the most essential of them all being that the intended arrest would be tainted with mala fides which must be specifically stated It is in this context also that the other condition of irreparable loss is to be viewed. Learned counsel appearing before us did not mention any fact to suggest that the arrest to this case would be mala fide. The High Court indeed was fully justified to interfere with the illegal order brought before it for scrutiny." (Underlined is mine)

5. So far as the question of further inquiry is concerned, there is some scope for further inquiry in almost every criminal case as observed by the Hon'ble Supreme Court of Pakistan in the case of Asmatullah Khan v. Bazi Khan and another (PLD 1988 SC 621). The relevant part of the judgment reads as under:-- "This Court time and again has emphasized that mere possibility of further enquiry which exists almost in every criminal case, is no ground for treating the matter as one under subsection (2) of section 497 Cr.P.C." In the case of Arbab Ali v. Khamiso and another (1985 SCMR 195), it was held by the Hon'ble Supreme Court that bail could be allowed only on the condition that the Police Officer or a Court comes to a definite conclusion - that there are no reasonable grounds for believing that the accused had committed a non-bailable offence. It way, further held: " .... without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry".

6. The learned counsel for respondent No. 1 has relied upon the judgment in the case of Raees Farooq (supra), wherein it was held that once bail has been granted the prosecution should make out a strong case for cancellation not by making allegations alone, but by giving substantive proof of such allegations. In the present case sufficient evidence is available to connect respondent No. 1 with the commission of the offence. Shahid Iqbal, the complainant, is the injured P. W ., who has clearly stated that Riaz Ahmad, respondent No. 1, fired with his 8 MM Rifle as a result of which he received injury on the fingers of his left hand. The Medico-Legal Report shows Injury No. 4 as a punctured wound (1- x l- c.m.) on the back of left middle finger of the complainant. Learned counsel for respondent No.l has tried to argue that it is an exit wound as mentioned by the Doctor. It is true that the Doctor has mentioned it as an exit wound but the question whether it is really so needs to be determined by the Trial Court after recording of the evidence of the complainant and the Doctor. The Doctor has to clarify whether he had examined the injuries on the hand from the side of the palm or that back of the hand. At this stage the alleged or the apparent conflict between the oral and the medical evidence per se does not make the prosecution case to be doubtful. The prosecution case is supported not only by the statement of the complainant but also by the statement of his brother Zahid Iqbal, Noor Ahmad and Ghulam Murtaza, P.Ws. Ghulam Murtaza was also injured during the occurrence. Thus there is abundant material on the record, which prima facie connects respondent No.l with commission of the offence. It is also significant to mention that the respondent was a member of an unlawful assembly and had prima facie acted in furtherance of the common object of the unlawful assembly. There was no valid ground to allow pre-arrest bail to him. The order passed by the Court below is clearly arbitrary and against the principles laid down by the superior Courts for grant of pre-arrest bail.

7. For the foregoing discussion, this petition is accepted and the bail allowed to respondent No.l by the learned Additional Sessions Judge, Okara vide his order dated 17-9-2001 is cancelled. H.B.T./S-336/L Bail cancelled.