2017 M L D 1204
[Balochistan]
Before Zaheer- ud-Din Kakar, J
NABI DAD and another ---Applicants
Versus
The STATE---Respondent
Cr. Bail Application No.508 of 2016, decided on 4th April, 2017.
(a) Criminal Procedure Code (V of 1898) ---
----S. 498---Penal Code (XLV of 1860), Ss.302, 324, 147, 148 & 149--- Qatl-i-amd attempt to
commit qatl- i-amd---Pre -arrest bail ---Procedure ---Concurrent jurisdiction---Person, against
whom a case was registered, at the first instance, would approach the ori ginal court having
jurisdiction i.e. sessions court in the matter of bail before arrest ---Said rule was not absolute as
depending upon the compelling circumstances of each case, accused could approach directly to
the High Court by invoking the concurrent j urisdiction.
Sh: Zahoor Ahmed v. The State PLD 1974 Lahore 256; The State v. Malik Mukhtar
Ahmed Awan 1991 SCMR 322; Rafiq Ahmed Jilani v. The State 1995 PCr.LJ 785 and Sharnrez
Khan v. The State 1999 PCr.LJ 74 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S.498---Penal Code (XLV of 1860), Ss. 302, 324, 147, 148 & 149--- Qatl-i-amd, attempt to
commit qatl- i-amd, rioting, rioting armed with deadly weapon, unlawful assembly ---Pre -arrest
bail, confirmation of ---Ulterior motive and mala fide intention ---Prosecution case was that
accused -petitioners along with co -accused armed with firearm weapons, made discriminate firing
upon the complainant party, due to which three persons sustained bullet injuries while two
persons died at the spot ---Admittedly, there was previous enmity between the parties and they
had registered several FIRs against each other, in which accused -petitioners were admitted to
pre-arrest bail ---Complainant nominated the present accused- petitioners along with 21 co-
accused persons, but no specific role had been assigned to them ---Check -in and check -out report
of the accused -petitioners in the High Court, duly verified by the Assistant Security Officer of
that Court, were available on record, which showed that accused -petitioners remained p resent in
the premises of High Court in respect of hearing of their criminal cases, on the day of alleged
incident ---Distance between High Court and place of occurrence was about more than 300
kilometers and it was not possible that after leaving the Court premises, they reached to the place
of occurrence and committed the alleged offence---Record showed that accused -petitioners
appeared before the Investigating Officer for recording their statements under S. 161 Cr.P.C.---
Said act of accused -petitioners sh owed that they had cooperated with the Investigating Officer
for the completion of investigation---Circumstances established that the case of the accused -
petitioners required further inquiry in term of S. 497(2) Cr.P.C.--- Interim pre -arrest bail granted
earlier was confirmed by the High Court in circumstances.
(c) Criminal Procedure Code (V of 1898) ---
----S.498---Bail ---Appreciation of evidence ---Scope ---Deeper appreciation of the record could
not be gone into at bail stage ---Only tentative assessment was to be made just to find out, as to
whether the accused was connected with the commission of offence or not.
(d) Criminal Procedure Code (V of 1898) ---
----S. 498--- Bail---Principle ---Observations rendered by the High Court while disposing of bail
application were not to be considered during trial of the accused.
Shuaib Mehmood Butt v., Iftikhar -ul-Haq 1996 SCMR 1854 rel.
Najeebullah Kakar for Applicants.
Ameer Hamza Mengal, D.P.G. for the State.
Date of hearing: 31st March, 2017.
ORDER
ZAHEER -UD-DIN KAKAR, J. ---Applicants Nabi Dad and Ali Murad seek pre -arrest
bail in Crime No.30 of 2016 dated 4th November, 2016, under sections 302, 324, 147, 148, 149,
P.P.C. registered with Levies Thana, Gandawah, District Jhal Magsi.
2. Precisely stated the facts o f the prosecution case as per the FIR are that on 4th November,
2016 at about 12:30 p.m., the complainant Ali Asghar along with 8/9 other persons were present
at their fields/lands, meanwhile, accused/applicants along with 18 other co- accused persons and
three unknown persons, duly armed with firearm weapons came there and in a loud voice made
lalkara that none of you can go alive and then made indiscriminate firing, due to which three
persons sustained bullet injuries while two persons namely Ali Muhammad and Ghulam Rasool
died at the spot. Motive behind the incident is told as old enmity between the parties.
3. On 20th December, 2016, the accused/applicants surrendered themselves before this
Court and they have been admitted to ad -interim pre -arrest bail, subject to furnishing surety to
the tune of Rs.200,000/ - (rupees two lac) each and PR bond of the like amount.
4. Learned counsel for the applicants contended that the accused/applicants are innocent of
the charge and have not committed any offence whatsoever and have falsely been implicated in
the instant case by the complainant with mala fide intention and ulterior motive; that there are
serious enmity between the parties and the complainant party being highly influential persons of
the area, lodged insta nt false case as many as five other false cases against the accused party; that
no specific role has been assigned towards the accused/applicants in the commission of alleged
offence; that on the day of alleged occurrence i.e.4th November, 2016, the applic ants were
present in the premises of the High Court in connection of their pre -arrest Bail Application Nos.
217/2016 and No.219/2016, thus, the applicants are entitled for confirmation of ad- interim pre -
arrest bail dated 20th December, 2016.
5. Conversely, the learned DPG vehemently opposed the request of the applicants for grant
of pre -arrest bail and stated that it is consistent practice of Criminal Law that, in the first
instance, an aggrieved person should approach the original Court having jurisdiction in the
matter for grant of bail before arrest instead of directly approaching the High Courts for the same
relief. He submitted that the applicants have been named in the FIR, which was lodged promptly.
He added that the applicants are involved in the mur der of three innocent persons, therefore, they
are not entitled for any relief.
6. I have heard learned counsel for the parties and have gone through the available record. It
is true that normally a person, against whom a case has been registered, at the f irst instance, may
approach the original Court having jurisdiction i.e. Sessions Judge in the matter of bail before
arrest, because propriety so demands, but it is not an absolute rule as depending upon the
compelling circumstances of each case a person can approach directly to the High Court by
invoking its concurrent jurisdiction. In this regard reference may be made to the cases of Sh:
Zahoor Ahmed v. The State {PLD 1974 Lahore 256}; The State v. Malik Mukhtar Ahmed Awan
{1991 SCMR 322}; Rafiq Ahmed Jila ni v. The State { 1995 P.Cr:L.J 785} and Sharnrez Khan v.
The State {1999 PCr.LJ 74}.
7. Now coming to the present application, the applicants have alleged that the complainant
has lodged a false FIR against them, therefore, they are entitled for confirmation of ad- interim
pre-arrest bail. It would be necessary to mention here that the Hon'ble Supreme Court of Pakistan
in the case of Rana Muhammad Arshad v. Muhammad Rafiq and another {PLD 2009 SC 427},
laid down the following framework and guidelines, according to which, jurisdiction vesting in
the High Courts and Courts of Session is to be exercised:
"9.
(a) grant of bail before arrest is an extraordinary relief to be granted only in
extraordinary situations to protect innocent persons against vi ctimization through abuse
of law for ulterior motives;
(b) pre-arrest bail is not to be used as a substitute or as an alternative for post -arrest
bail;
(c) bail before arrest cannot be granted unless the person seeking it satisfies the
conditions specified through subsection (2) of section 497 of Code of Criminal Procedure
i.e., unless he establishes the existence of reasonable ground leading to a belief that he
was not guilty of the offence alleged against him and that there were, in fact, sufficient
grounds warranting further inquiry into his guilt;
(d) not just this but in addition thereto, he must also show that his arrest was being
sought for ulterior motive, particularly on the part of the police; to cause irreparable
humiliation to him and to disgrace and dishonor him;
(e) such a petitioner should further establish that he had not done or suffered any act
which would disentitle him to a discretionary relief in equity e.g. he had no past criminal
record or that he had not been a fugitive at law; and fin ally that;
(f) in the absence of a reasonable and justifiable cause, a person desiring his
admission to bail before arrest, must, in the first instance approach the Court of first
instance i.e., the Court of Session, before petitioning the High Court for t he purpose."
8. As per guideline "d" (supra) in addition to the other guidelines, the applicant must also
show that his arrest was being sought for ulterior motives, particularly on the part of the law
enforcement agencies; to cause irreparable humiliation , disgrace and dishonor him. It is to be
noted that in the instant case, the applicants have alleged mala fide on the part of the
Investigation Officer/levies. In para -4 of the application, the applicants stated that on account of
serious enmity, they had migrated from their native village and they have surrendered themselves
before this Court in eight different FIRs, (mentioned in the memo. of application) and they were
admitted to ad -interim bail in that FIRs and on 4th November, 2016, this Court accepted their
pre-arrest bail applications.
9. It is admitted position that there is previous enmity between two tribes of District Jhal
Magsi and they had registered several FIRs against each other, in which the applicants were
admitted to pre -arrest bail. The p resent case was registered on 4th November 2016 at about 2:30
p.m. in which the complainant nominated the present applicants along with 21 co- accused
persons, but no specific role has been assigned to them. During the course of arguments, the
learned couns el for the applicants has placed on record check -in and check -out report of the
applicants in the High Court, duly verified by the Assistant Security Officer of this Court, which
clearly shows that on the day of alleged incident i.e. 4th November, 2016, the applicants
remained present in the premises of this Court, in respect of the hearing of their cases in Criminal
Pre-arrest Bail Applications No.217 of 2016 and No.219 of 2016 and on the same day their
interim pre -arrest bail was confirmed. As per FIR, th e alleged occurrence took place on 4th
November, 2016 at about 12:30 p.m. in Goth Gajan Tehsil Gandawah and the distance between
the High Court and the place of alleged occurrence is about more than 300 kilometers and it is
not possible that after leaving the Court premises at 9:47 a.m. (as per report of Security Officer)
they reached to the place of occurrence and committed the alleged offence. Furthermore, the
applicants also appeared before the Investigating Officer for recording their statements under
Section 161, Cr.P.C., which were recorded by the Tehsildar/I.O, Gandawah, on 25th March,
2017. This act of the applicants shows that they have cooperating with the Investigating Officer
for completion of the investigation. Prima facie, the case of the appli cants/accused requires
further enquiry in terms of subsection (2) of section 497, Cr.P.C. I am mindful of the fact that
deeper appreciation of the record cannot be gone into at the bail stage, but only tentative
assessment is to be made just to find out, a s to whether the present applicants/accused are
connected with the commission of the alleged offence or not? If the above settled legal position
is kept in mind and the record of this case is examined, it will be noted that the applicants have
successfully made out a case of further inquiry for the reasons mentioned hereinabove.
10. Before parting with the case, this Court finds it necessary to remind the trial Court that
the observations rendered by the High Court while disposing of bail applications are not to be
considered during trial of the accused. In this regard the Apex Court of Pakistan in "Shuaib
Mehmood Butt v. Iftikhar -ul-Haq" {1996 SCMR 1854} has rendered clear guidance, which is to
the effect that: --
"However we would like to point out in no ce rtain terms that the observations made by
the High Court in the orders granting bail and by us in this order are confined to tentative
assessment made for the purpose of disposal of trial applications and not intended to
influence the mind of the trial Court, which is free to appraise the evidence strictly
according to its merits and the law of the time of disposal of the case, which of course it
is needless to say, is the function of the trial Court."
11. Accordingly, the pre -arrest bail application is allowed and the interim pre -arrest bail
granted to the applicants as per order dated 20th December, 2016, is hereby confirmed on the
same terms and condition.
JK/38/Bal Bail grantedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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