2019 P Cr (PLP)

RAJA SAJJAD AHMAD KHAN, J.

Through this revision petition, petitioner-complainant, seeks cancellation of pre-arrest bail allowed to accused respondent No.1, by Sessions Judge, Poonch-Rawalakot vide its order dated 09.07.2018.

2. The facts giving rise to this revision petition are that complainant lodged a report with Police Station, Rawalakot that he is resident of Nahla Bazar Rawalakot. The complainant's daughter Mst. Shabana Yasmeen contracted marriage with Shazad Rauf son of Abdur Rauf prior to 8 years before the occurrence. A son was born out of this wedlock which is alive. Due to domestic issue his daughter filed a suit for cancellation of Nikah on the ground of 'Khula' before Family Court, Rawlakot. On 21.07.2014 it was decided in favour of his daughter and now the guardian case was also sub judice before the Family Court. On 21.05.2018 the same was also decided in her favour. Today on 22.05.2018 at about 3.00 a.m. at Sehri time when the complainant was reciting Holy Quran, suddenly he heard the sound of hue and cry. The complainant closed Holy Quran, in the meanwhile Shahzad Rauf entered in his room and pushed him with force, upon which he fell down. Three unknown persons were also with the accused Shazad Rauf who were in the room of his daughter. Shazad Rauf along with three other unknown persons entered in the house of complainant and gave beating him and his daughter. They also abused and threatened them. The accused having pistols in their hands. The complainant has danger that the accused can abduct his daughter and her son at any time or kill them, Beside Irfan Bahram and Rashid Khan caste Sudhan resident of Nahla Bazar, the people of locality were also having the knowledge of this occurrence. The delay in lodging the report was that complainant has some trouble due to which he went to hospital.

3. On this report, a case vide FIR bearing No.141/2018 in offences under sections 452, 506, 34, A.P.C. was registered against the accused-respondent and co-accused at Police Station, Rawalakot. After registration of the case, accused respondent No.1 herein applied for bail before arrest before Sessions Judge, Rawalakot on 29.05.2018, which was allowed and later on confirmed vide impugned order dated 09.07.2018, hence, this revision petition.

4. Miss Uzman Usman, the learned Counsel for the petitioner/complainant, submitted that accused-respondent has been nominated in the FIR, his presence at the place of occurrence at relevant time was successfully established by the prosecution which was supported from statement of witnesses under section 161, Cr.P.C. and recovery of his cell phone. She further argued that some family cases were decided in favour of complainant's daughter, on account of which accused-respondent No.1 along-with three unknown persons entered in the house of complainant and committed the alleged crime which offence falls within the prohibitory clause of section 497, Cr.P.C. She also submitted that learned Sessions Judge, granted concession of pre-arrest bail in the absence of accused respondent without considering these aspect which is against law and justice, therefore, by accepting the revision petition the same may be cancelled.

5. Conversely, Syed Habib Hussain Shah, the learned counsel for accused-respondent No.1, fully defended the impugned order on all counts and submitted that respondent has been falsely implicated by the complainant with the connivance of Police on account of family litigation. He further argued that respondent was not present at the place of occurrence at relevant time rather he was in Rawalpindi for his job, hence no offence has been committed by him and grant of pre-arrest bail is based on cogent reasons, which is liable to be sustained. Finally he prayed for dismissal of the revision petition.

6. The learned Additional Advocate General appearing on behalf of the State opposed the submissions made by the learned counsel for the accused-respondent and vigorously contended that the accused-respondent is involved in committing of heinous offence; therefore, bail allowed to him may be cancelled.

7. I have heard the learned Counsel for parties as well as the learned State Counsel and cursorily gone through the record.

8. It would be worthwhile to mention here that pre-arrest bail cannot be granted unless the petitioner succeeds in showing that the prosecution has been launched against him by the complainant with mala fide intention and that the Police is ought to arrest him with ulterior motives of harassing and humiliating him. It is well settled that pre-arrest bail is granted only in those matters where it would appear that the registration of such cases was based on enmity, mala fide or where no offence was shown to have been committed on the very face of record.

9. A perusal of record reveals that FIR No.141/2018 in offences under sections 452, 506, 34, A.P.C. has been registered against the accused respondents regarding the occurrence took place on 22.05.2018 at about 3.00 a.m. It is stated in the FIR that complainant is father-in-law of the accused respondent who alleged that accused respondent along with three unknown persons entered in his home and beat him and his daughter. On the registration of the FIR the accused respondent obtained the concession of pre-arrest bail which was confirmed through the impugned order. The learned Session Judge Rawalakot granted him bail before arrest on the ground that some Family cases between the parties are subjudice before the Family Court while offence under section 452, A.P.C. does not fall within the Prohibitory Clause of section 497, Cr.P.C. It transpires from the record beside complainant, his daughter namely Shabana Yasmeen and other neighbors namely Mohammad Irfan and Mohammad Rashid etc got recorded their statements under section 161, Cr.P.C. in support of the prosecution version and a cell phone (HUAWEI PRIME) Y-7 model along with Sims Numbers 0316 5041957 and 0344-8862118 were seized from the place of occurrence. A call history sheet and tower location was collected by the Investigating Officer which shows that at the time of occurrence, the accused respondent was present at the place of occurrence. The accused respondent placed on record a copy of daily dairy of Police Station, Sadiqabad Rawalpindi through which he submitted that his cell phone was misplaced on 19.05.2018 whereas call history reveals that the aforesaid Sims/phone were used on 21.05.2018 to 22.05.2018. It is settled law that bail before arrest is an extraordinary concession which can only be granted to a innocent person but in the case in hand prima facie reasonable grounds exists to connect the accused respondent with the alleged offences and no mala fide intention has been shown against the complainant that he has falsely implicated the respondent. Moreover, recovery of weapon and vehicle used in the occurrence are yet to be recovered and name and identification of co-accused are yet to be made.

10. From tentative assessment of the record, this Court is of prima facie view that the accused respondent is connected with the alleged commission of offence who is not entitled to the extraordinary concession of pre-arrest bail which is meant only to save innocent person from undue harassment, humiliation and disgrace as the present accused respondent has failed to fulfill the above ingredients for the grant of such relief. Moreover, there is no cogent material to show that the complainant and police motivated with malice or ulterior motive for harassing and humiliating the respondent. Even otherwise, considerations for grant of bail before arrest and after arrest are altogether different and it is not a case of bail after arrest. Similarly, previous non-conviction is also not a ground for the grant of pre-arrest bail.

11. Therefore, while keeping in view the allegation levelled in the FIR and other material placed before the Court, prima facie case connected the accused respondent with the commission of alleged offences, resultantly the revision petition is accepted and ad-interim pre-arrest bail granted to accused respondent No.1 vide order dated 09.07.2018 by learned Sessions Judge, Rawalakot is hereby recalled. Before parting with the order, it may be observed that any observation in this order, being purely tentative in nature, shall in no way prejudice the proceedings before the learned trial Court where the case be decided strictly on its own merits. SA/6/HC(AJ&K) Pre-arrest bail recalled.