2021 PLP 95 (YLRN)

ABDUL HAMEED BALOCH, J.

Through this order intend to dispose of above titled application filed by the applicant for his release on bail in case FIR No. 75 of 2012, under sections 302, 324, 34 Pakistan Penal Code (P.P.C.), Police Station Duki, District Loralai, registered on 17th September, 2012.

2. Concise facts of the case are that on 17th September, 2012, case FIR No.75 of 2012, under above mentioned section was registered with Police Station Duki District Loralai on the report of Subedar Asmatullah Khan with the allegation of firing by known accused persons due to which Noor Moeed Khan and others received injuries and later on Noor Moeed succumbed to the injuries.

3. After registration of FIR and usual investigation challan against co-accused was submitted before Special Judge Anti Terrorism Court-II, Quetta where co-accused were charged and tried , whereafter, the learned trial court vide judgment dated 24th June, 2015 acquitted co-accused, whereas file was kept in dormant till arrest of absconding accused including the applicant.

4. The applicant surrendered himself before this Court on 13th January, 2021 and he was admitted to ad-interim pre-arrest bail subject to furnishing surety in the sum of Rs.100,000/- with PR bond of the like amount to the satisfaction of Additional Registrar of this court.

5. The learned counsel for the applicant contended that the applicant is not nominated in the FIR. The FIR was lodged against unknown persons. Subsequently one Naib Subedar No. 4647 FC submitted an application stating that on instigation and consultation the accused made firing. The named accused approached the trial court which were granted bail. Thereafter, they faced the trial. The learned Special Judge Anti Terrorism Court-II, Quetta (trial court) vide judgment dated 24th June, 2015 acquitted them. There is no evidence with regard to abetment and instigation. The learned counsel contended that due to tribal feud with Nasar tribe the applicant has been nominated. The learned counsel relied on following case laws: Arjamand Shahzadi v. The State 2019 PCr.LJ 569 [Lahore] Ameer Bakhsh v The State 2020 MLD 783 [Balochistan] Babar Nadeem v. The State 2020 SCMR 1253 Sardar Muhammad Ameen Khan v. The State 2014 PCr.LJ 940

6. The State Counsel strongly opposed the contention of learned counsel for the applicant and stated that the applicant remained fugitive from long which itself disentitled him for the concession of bail. The witnesses fully implicated the applicant. The nature of crime is heinous.

7. Heard and perused the record with their able assistance. Admittedly the FIR was lodged against unknown persons. Whereafter, one Tariq Muhammad Naib Subedar FC submitted an application wherein it was stated that on inquiry it came to know that the occurrence had taken place on the instigation and consultation of applicant, but prosecution failed to collect any evidence in regard of conspiracy, when and where the conspiracy is made, the complainant has not furnished source of information and detail of conspiracy/ abetment. Where the prosecution has alleged that the fateful occurrence has taken place on instigation, abetment and consultation of applicant then the prosecution has to substantiate its contention through cogent evidence. The record depicts that there is no evidence in regard of conspiracy. Reliance is placed on the case of Syed Amanullah Shah v. The State PLD 1996 SC 241, wherein it was held: "

case of a conspirator or abettor not present on the spot stands at lower footing than the case of the accused instigating his companion to commit the crime being himself present on the spot. Furthermore, it is very easy to set up accusation of abetment/ instigation/ conspiracy / Iema; needless to say when parties are inimically depressed, the possibility of false implication of opponent is very much there.

" Similar view was affirmed by the august Supreme Court of Pakistan in the case of Malik Muhammad Ishaq v. The State and others (2011 SCMR 1350). It is a settled principle of law that the Court can even look into and evaluate the mala fides from the facts and circumstances of the case, which apparently is oozing in this case from the facts and circumstances discussed, above. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97) and Syed Muhammad Firdaus and others v. The State (2005 SCMR 784). Moreover, keeping in view the dictum of law laid down by the august Supreme Court of Pakistan in a reported case Meeran Bux v. The State and 4 others (PLD 1989 SC 347), the Court while deciding the pre-arrest bail can touch upon the merits of the case.

8. In another case Khair Muhammad v. The State 2021 SCMR 130 the Honorable Supreme Court held: "There is no denial to this fact that the petitioners are nominated in the crime report. According to the contents of the crime report, it is mentioned that the occurrence has taken place in the morning ( ) whereas the matter was reported to police at 10:50 a.m. Admittedly, the inter-se distance between the place of occurrence and police station is 08-KM. Inordinate delay qua time of occurrence and registration clearly reveals that possibility of deliberation and consultation cannot be ruled out. Apart from this, the role ascribed to both the petitioners was not substantiated during course of investigation. Ad-interim bail was granted to the petitioner by this Court vide order dated 01.10.2020 whereas on 08.10.2020 though investigating Officer was present but he could not satisfy the court, hence vide order dated 08.10.2020 District Police Officer, D.G. Khan was directed to appear in person. Today, District Police Officer, D.G. Khan is present in the Court in person, he categorically stated before the court that Senior Police Officer of the Gazetted Rank investigated the matter at length and gave concurrence to the finding given by the local Investigating Officer. The concept of pre-arrest bail is exceptional; it has to be exercised sparingly. The purpose behind is to save innocent persons from false allegations, trumped up charges and malicious prosecution at the end of complainant party. In the salutary judgment of this Court reported as "Meeran Bux v. The State and another" (PLD 1989 SC 347), the scope of the pre-arrest bail has been widened and as such while granting pre-arrest bail even the merits of the case can be touched upon. The petitioners are ascribed the role which was found false during the course of investigation. The injury ascribed to Bashir Ahmed was contradicted by medical evidence. Co-accused Khair Muhammad was found not to be present at the spot at the time of occurrence by the Investigating Officer concurred by Senior Police Officer. No recovery of any incriminating material is to be effected from the petitioners. Both of them of advance age, feeble and found not connected with the crime as alleged, even one of the petitioners was not present at the spot. The custody of the petitioners could not advance the case of prosecution in any manner. Otherwise the authenticity of the accusation would be resolved by the learned trial court after recording of evidence. We are constrained to give any finding at this stage, lest it may prejudice the case of either of the party."

9. So far abscondence of applicant is concerned. Mere abscondence is no ground to curtail the liberty of a person. In this regard replace is placed on Mitho Pitafi v. The State 2009 SCMR 299, wherein it was held: "

Learned High Court of Sindh as well as learned trial Court has rejected the bail of petitioner on account of absconsion and not on merit. It is well-settled principle of law that bail can be granted if an accused has good case for bail on merit and mere absconsion would not come in way while granting the bail. We are, prima facie, of the view that the learned High Court has not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner."

10. Though for grant of pre-arrest bail one of the pre-condition is that the accused has to show that his arrest is intended by the prosecution out of mala fide intention and for ulterior consideration in order to humiliate the applicant. At pre-arrest bail stage it is difficult to prove the element of mala fide by the accused through solid evidence and same to be decided from the facts and circumstances of the case and if some events-hints to the effect are available the same would validly constitute the element of mala fide. Reliance is placed on the case of Khalil Ahmed Soomro v. The State PLD 2017 SC

730. In view of the above the application is allowed. The ad interim bail granted to the applicant by this Court vide order dated 13.1.2021 is hereby confirmed. The observations made herein-above are tentative in nature and same shall not influence merits of the case at the trial. JK/45/Bal. Bail confirmed.