2017 M L D 965
[Balochistan]
Before Zaheer- ud-Din Kakar, J
SHAKAR KHAN and 17 others ---Applicants
Versus
The STATE---Respondent
Crl. Pre -arrest Bail Application No.215 of 2016, decided on 4th November, 2016.
(a) Criminal Procedure Code (V of 1898) ---
----S. 498---Pre -arrest bail, grant of ---Scope, procedure, and conditions ---Grant of bail before
arrest was an extraordinary relief to be granted only in extraordinary situations to protect
innocent persons against victimization through abuse of law for ul terior motives ---Pre -arrest bail
was not to be used as a substitute or as an alternative for post -arrest bail ---Bail before arrest
could not be granted unless the person, sought it, satisfied the conditions specified through sub-
section (2) of S. 497, Cr.P .C. i.e., unless he established 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 ---Accused must also show that
his arrest was being sought for ulterior motive, particularly by the police; to cause irreparable
humiliation to him and to disgrace and dishonor him ---Such a petitioner should further establish
that he had not done or suffered any act which woul d disentitle him to a discretionary relief in
equity e.g. he had no past criminal record or that he had not been a fugitive from law ---In the
absence of a reasonable and justifiable cause, person desiring his admission to bail before arrest,
must, in the f irst instance approach the court of first instance i.e., the court of session, before
petitioning the High Court for the purpose.
Rana Muhammad Arshad v. Muhammad Rafiq and another PLD 2009 SC 427; Hidayat
Ullah Khan's case PLD 1949 Lah. 21 and AIR 1949 Lah. 77 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 498---Penal Code (XLV of 1860), Ss. 302, 147, 148, 149---Anti -Terrorism Act (XXVII of
1997), S. 7---Qatl -i-amd, rioting, rioting armed with deadly weapons, unlawful assembly, act of
terrorism ---Pre-arrest bail, recalling of ---Scope--- Allegations on the accused persons were that
they attacked and made indiscriminate firing on complainant party ---Accused persons fired 3/4
rocket launchers, due to which panic was created in the area ---Accused party taken away one
member of complainant party and then killed him ---Accused persons had not alleged any mala
fide or collusion in particular on the part of Investigating Officer/levies to involve them in false
case---Record showed that reasonable grounds wer e available to believe that accused persons
along with co- accused persons committed the offence alleged in FIR, which was hit by the
prohibitory clause of S. 497(1), Cr.P.C.---Accused persons were not entitled to the grant of
concession of pre -arrest bail ---Ad -interim pre -arrest bail granted to the accused persons was
recalled accordingly.
PLD 2010 Kar. 110; 2012 PCr.LJ 806; 2010 PCr.LJ 310 and 2004 SCMR 1167 ref.
(c) Criminal Procedure Code (V of 1898) ---
----Ss. 497 & 498 ---Bail---Deeper appreciation or evaluation of evidence at bail stage was not
permissible under the law.
(d) Criminal Procedure Code (V of 1898) ---
----Ss. 497 & 498--- Bail---Only tentative assessment could be made at bail stage---Detailed
assessment or evaluation of evidence was to be left for the Trial Court.
Bashir Ahmed and another v. The State 2007 PCr.LJ 966 and Akhtar Hussain v. The
State 2000 PCr.LJ 315 rel.
(e) Criminal Procedure Code (V of 1898) ---
----Ss. 497 & 498---Precedent ---Applicability ---Decision of one case in the ba il matter was
hardly helpful to another case ---Each case had its own peculiar facts and circumstances.
Najeebullah Kakar for Applicants.
Asad Ali Tareen for the State.
Date of hearing: 28th October, 2016.
ORDER
ZAHEER -UD-DIN KAKAR, J. ---Though this application under section 498, Cr.P.C.,
the applicants have sought pre -arrest bail in case FIR No.11 of 2016, dated 29.02.2016,
registered at Levies Thana, Gandawah, District Jhal Magsi, in respect of offences under sections
302, 147, 148, 149, P.P.C. read w ith Section 7 Anti -Terrorism Act, 1997.
2. Precisely stated the facts of the prosecution case as per the FIR are that on 20.02.2016,
the complainant Rahim Bakhsh was sitting in his Otaq along with Lal Muhammad, Zafarullah,
Muhammad Yousaf, Mehrullah and Muhammad Arif, meantime, the accused/applicants along
with absconding accused persons attacked upon them, made indiscriminate firing and also fired
3/4 rocket launchers, due to which panic created in the area and took away Zafarullah, Mehrullah
and Muhammad Arif and kept them for two hours, thereafter, at about 5:30 p.m. they killed them
by means of firing and threw their dead bodies near the house of complainant situated at Goth
Qazi Ismail, Tehsil Gandawah.
3. On 25.05.2016, the accused/applicants surrender ed themselves before this court and they
have been admitted to ad- interim pre -arrest bail, subject to furnishing surety to the tune of
Rs.100,000/ - (rupees one 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 instant 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, thus, the applicants are entitled for confirmation of ad- interim pre -arrest bail dated
25.5.2016. In support of his contentions, the learned counsel relied upon PLD 2010 Karachi 110,
2012 PCr.LJ 806 Sindh, 2010 PCr.LJ 310 Karachi and 2004 SCMR 1167.
5. Conversely, the learned State Counsel vehemently opposed the application and stated that
the applicants have been involved in a number of criminal cases. He submitted that the applicants
have been named in the FIR, which was lodged prompt ly. He has further submitted that the
recovery cannot be effected because firstly, the applicants are not co- operating in the
investigation and secondly, since they have not been arrested and this is hampering investigation
and recovery. He added that the applicants are involved in the murder of three innocent persons,
therefore, they are not entitled for any relief.
6. I have heard learned counsel for the parties and have also gone through the available
record. The applicants have alleged that the complain ant lodged a false FIR against them,
therefore, they are entitled for confirmation of ad- interim 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 framework and guide lines,
according to which, jurisdiction vested in the High Court and Courts of Sessions is to be
exercised and relevant paras read as under: --
"8. It was perhaps for the first time in December, 1948 that by interpreting the latter part
of section 498 of the Code of Criminal Procedure in Hidayat Ullah Khan's case PLD
1949 Lah. 21 = AIR 1949 Lah. 77, the power vesting in the High Courts and the Court of
Sessions to admit persons to bail before they could be arres ted, was authoritatively
discovered by a Full Bench of the Lahore High Court, Corenlius, J. (As he then was)
epitomized the said power and it bounds in the following words: --
"For the reasons given above, the reply which I would give to the question referr ed to us
is that, in a proper case, the High Court has power under section 498, Criminal Procedure
Code, to make an order that a person who is suspected of an offence for which he may be
arrested by a Police Officer or a Court, shall be admitted to bail. T he exercise of this
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 an eventuality suffer irreparable harm."
9. Even since then, the said interpretation so made, the said powers so found and the
parameters so prescribed, have been regularly and repeatedly coming up for scrutiny by
the Superior Courts including this Court. But e ach time the matter was re -examined, the
same was only reaffirmed. The said concept as it was initially propounded; as it
developed and as the same stands today, may be summarized for the benefit of us all as
under: --
(a) grant of bail before arrest is an extraordinary relief to be granted only in
extraordinary situations to protect innocent persons against victimization 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 belie f 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 ulteri or 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 discretiona ry relief in equity e.g. he had no past criminal
record or that he had not been a fugitive at law; and finally that;
(f) In the absence of a reasonable and justifiable cause, a person desiring his
admission to bail before arrest, must, in the first instanc e approach the Court of first
instant i.e., the Court of Session, before petitioning the High Court for the purpose."
7. As per guideline "d" (supra) in addition to the other guidelines, the applicant must also
show that his arrest was being sought for ult erior motives, particularly on the part of the police;
to cause irreparable humiliation to him and to disgrace and dishonor him. It is to be noted that
the applicants have not alleged any mala fide or collusion in particular on the part of the
investigatio n officer/levies. The grounds urged by the applicants for the grant of bail require
deeper appreciation or evaluation of evidence, which is not permissible at this stage. For the time
being, reasonable grounds are available on the record to believe that the applicants along with
co-accused persons committed the offences alleged in the FIR, which fall within the prohibitory
clause of section 497(1), Cr.P.C. It is well settled that for the purpose of bail only tentative
assessment could be made and detailed assessment or evaluation of evidence should be left for
the trial court. This view is supported by the cases of Bashir Ahmed and another v. The State
(2007 PCr.LJ 966 Lahore) and Akhtar Hussain v. The State (2000 PCr.LJ 315 Karachi).
8. So far as the case l aw, relied upon by the learned counsel for the applicants is concerned,
the same is not relevant to the facts of the present case. In criminal matters, particularly in bail
matters, the authority of one case is hardly helpful to another case. Each case has its own
peculiar facts and circumstances.
9. In view of the above discussion, I have reached to the conclusion that the applicants are
not entitled to the grant of concession of pre -arrest bail. Consequently, the ad- interim pre -arrest
bail dated 25.5.2016 granted to the applicants is hereby recalled and this bail application is
rejected.
JK/77/Bal. Bail declined.This 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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