1988 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)‑‑ ‑‑‑S. 498‑‑Penal Code (XLV of 1860), Ss. 307, 506 & 500/34‑‑Petitioner slipping away from Court‑‑Effect on pre‑arrest bail‑‑Petitioner found entitled to pre‑arrest bail, but at time of announcement of judgment he slipped away from Court‑‑One of essential ingredients for grant of pre‑arrest bail being that accused had to surrender to custody of Court‑‑Petitioner by his abscondence, held, had disentitled himself to bail before arrest‑‑Prayer for bail before arrest refused in circumstances.‑‑[Abscondence]. Athar Rehman Khan for Petitioner. Tasaddaq Hussain Gilani, A. A. ‑G. for the State. Muhammad Akram Sheikh for the Complainant. A case under sections 307/506/500/34, P.P.C. was registered against the petitioner and two others namely, Muhammad 4aved and Muhammad Sharif vide F.I.R. No. 69, dated 12‑11‑1986 at Police Station Leiah City. The allegations in the F.I.R. are that the complainant Mehr Manzoor Hussain, an Advocate, represented Fazal Hussain etc. in a case before the S.D.C.O. and when he came out of his office, Abdul Hakeem gave filthy abuses and raised lalkara that he would be taught a lesson for representing Fazal Hussain etc. before the S.D.C.O. and on that lalkara Javed and Sharif co‑accused caught hold of the complainant and then inflicted injuries, without any weapon, on his person and also criminally intimidated him by throwing a threat that the complainant would not be spared. The petitioner applied for bail before arrest in which interim pre‑arrest bail was allowed but the learned Sessions Judge, Leiah did not confirm the same and dismissed the petition vide order, dated 30‑11‑1986. The petitioner then applied for bail before arrest in this Court and was allowed interim bail vide my order, dated 6‑12‑1986. I have perused the record and have heard arguments of the learned counsel for the parties (including that of the complainant).

2. The two co‑accused Muhammad Javed and Muhammad Sharif have been allowed post‑arrest bail by the learned Magistrate, 1st Class with powers under section 30, Cr.P.C. Leiah vide order, dated 13‑12‑1986. On perusal of the record the learned Magistrate (who also happens to be a Civil Judge, 1st Class, Leiah) has observed that the police investigation has almost been wound up and it appears that it is tending towards the cancellation of the case or at least to changing the head of the offence to a minor offence. A ground has been taken by the petitioner that the police during investigation has found that section 307, P.P.C. is not applicable to the case and while allowing interim bail this ground was specifically kept in view. The police record which has been produced today shows that to them, the main offence does not appear to fall under section 307, P.P.C. and they are seeking advice in this matter from their legal cell. For the present it appears that according to the police investigation the case does not fall under section 307, P.P.C. This supports the ground mentioned by the learned Magistrate in his said order, dated 13‑12‑1986. It is worth mentioning that there is no allegation that any of the three accused was armed with any weapon or that any injury was inflicted by any weapon. Abdul Hakeem petitioner has been attributed only lalkara and of course the said threat which is termed as criminal intimidation. As in the occurrence no weapon was used the police is doubting that there was any intention to kill the complainant especially when the occurrence took place in broad daylight and at a place frequented by litigants etc. The petitioner has levelled allegations that his relations with the complainant were inimical and they are involved in litigation and apart from that the petitioner has made complaints against the complainant for professional misconduct etc. To support his allegations in regard to enmity he has given the details in the petition and has produced documents to support the same. However, the details of the same need not be discussed at this stage, because the same can have affect on the trial of the case.

3. The legal aspect of the case has, therefore, to be weighed keeping in view the factual position stated in the foregoing paragraphs. The leading case in regard to the grant of pre‑arrest bail is Murad Khan v. Fazal‑e‑Subhan and another P L D 1983 S C 82 and the other relevant cases are Sh. Zahoor Ahmed v. The State P L D 1974 Lah. 256, Arif Mutin Bhutta v. The State P L D 1984 Lah. 383 and Muhammad Safdar and others v. The State 1983 S C M R 645 and there are many more. The crux of the above quoted rulings is that pre‑arrest bail can be granted to a petitioner who shows "that he apprehends his arrest on account of ulterior motives particularly on the part of the police", and that there is "apprehension of harassment and undue irreparable humiliation by means of unjustified arrest". At the same time it has been held that the Courts are the guardians of liberty of the citizen and should see that by abuse of power no innocent person is roped in or humiliated or is caused irreparable loss to his reputation. In the case of Sh. Zahoor Ahmad (supra) the tests for allowing pre‑arrest bail have been laid down and the same were approved in the case of Murad Khan (supra) by the Honourable Supreme Court. These provide that although pre‑arrest bail cannot be allowed as a rule yet the same is permissible in exceptional circumstances. Similarly, in the case of Muhammad Safdar (supra) it was held that no pre‑arrest bail can be granted unless peculiar features of a case justify the exercise of discretion in favour of an accused. Keeping in view the law laid down in these cases it has to be seen whether the case of the petitioner is an exceptional one or has got peculiar circumstances of its own or involves only ulterior motive to disgrace and humiliate the petitioner or not. As mentioned` above the police investigation has not so far found that the case falls or could fall under section 307, P.P.C. The police record also shows that there are certain weaknesses in the case on account of which they have sought advice from the legal cell. No weapon of any sort was used in the occurrence and nothing is therefore, to be recovered. Enmity between the parties is somewhat admitted. The two co‑accused who were alleged to have inflicted injuries have already been released on bail by the learned Magistrate concerned. The chances of involving the petitioner in the case for humiliating him cannot as such, be ruled out. Accordingly the case of the petitioner is of a peculiar nature and falls under an exception; as understood under the law laid down in the said rulings. The petitioner, therefore, is' entitled to pre‑arrest bail.

4. However, when the case was called for announcement of the judgment, the petitioner did not appear and is reported to have slipped away. One of the essential ingredients mentioned in the above rulings specifically in Zahoor Ahmad's case (supra), for grant or pre‑arrest bail, is that the accused has to surrender to the custody of the Court. By his absence/ abscondence the petitioner has dis entitled himself to bail before arrest. The prayer for bail before arrest is, therefore, refused. The petition is dismissed. The petitioner can be taken into custody/ arrested by the police. H. B. T./ A‑264/ L Petition dismissed.