2020 M L D 783
[Balochistan]
Before Rozi Khan Barrech, J
AMEER BAKHSH ---Applicant
Versus
The STATE--- Respondent
Criminal Bail Application No. 296 of 2019, decided on 20th September, 2019.
(a) Criminal Procedure Code (V of 1898) ---
----S. 498--- Penal Code (XLV of 1860), Ss. 302, 109 & 37---Qatl -i-amd, abetment, co -
operation by doing one of several acts constituting an offence ---Pre-arrest bail, grant of ---
Further inquiry---Accused/applicant not present on the spot ---Effect --- Allegat ion in the FIR
was that the co -accused persons committed the murder at the instigation of
accused/applicant, seeking pre- arrest bail ---Specific role was attributed to the co -accused
who allegedly made firing upon the deceased--- Accused/applicant was not pr esent at the time
of occurrence--- Prosecution had not alleged that the co- accused consulted or conspired
with the accused/applicant ---Prima facie no evidence was available on record that the co -
accused had fired upon the deceased at the instigation or abetment of accused/applicant ---
Accused/ applicant had made out a case for further inquiry and deserved confirmation of ad-
interim pre -arrest bail, which was accordingly granted.
(b) Criminal Procedure Code (V of 1898) ---
----S. 498-- Pre-arrest bail ---Direct approach to High Court ---Exceptional circumstances ---
Pendency of application for transfer of case to another district ---Scope ---Accused in
exceptional circumstances, where his life was under threat in case of directly approaching the trial Court, co uld approach High Court for grant of pre -arrest bail ---Tribal enmity existed
between both the parties and the accused had also filed application for transfer of case to another district, thus a genuine reason existed in favour of the accused to directly approach the High Court.
Rais Wazir Ahmed v. The State 2004 SCMR 1167 rel.
(c) Criminal Procedure Code (V of 1898) ---
----Ss. 498 & 497--- Pre-arrest bail ---Bail---Principles ---Scope --- Extraordinary relief of pre -
arrest bail is meant for innocent persons t o save them from humiliation and disgrace at the
hands of police ---Purpose of such a remedy is to protect liberty and reputation of citizens,
particularly in a case where the circumstances reflect that the case is one of further inquiry ---
Power to grant ba il under S. 498, Cr.P.C. is not additional to or independent to S. 497,
Cr.P.C. and even while granting pre -arrest bail the provisions contained under S. 497,
Cr.P.C. are also to be kept in mind ---Grant of bail or its refusal is essentially a matter of
discretion to be exercised judiciously not arbitrarily and the facts of each and every case
have to be considered separately and independently---Reasonable and plausible ground must
exist for grant of bail before arrest ---Concept of pre -arrest bail was develo ped on three
presumptions, firstly the accused is presumed to be innocent till he is found guilty, secondly
the accused should have a right to prepare his defence and prove his innocence before the Trial Court and thirdly the accused should not be punished before the findings of his
conviction are rendered by the court.
Rahib Buledi for Applicant.
Wajahat Khan Ghazanavi, State Counsel for P.G. for the State.
Date of hearing: 13th September, 2019.
ORDER
ROZI KHAN BARRECH, J. ---This order disposes of Criminal Bail Before Arrest
Application No.296 of 2019 whereby the applicant namely Ameer Bakhsh son of Arz Muhammad is seeking bail before arrest in FIR No.61 of 2019 was lodged with City Police Station Dera Murad Jamali under sections 302, 109, 37, P.P.C.
2. Facts of the case are that the complainant Inayatullah son of Mir Hassan lodged FIR
No.61 of 2019 with the allegation that his brother Liaqat Khan along with his relatives Phattan and Abdul Sattar came from Gandawah at Dera Murad Jamali, a t about 1:20 a.m.,
and while they were present at Shah Pump suddenly accused Shah Nawaz, Gul Hassan, Sher Muhammad alias Shero sons of Imam Bakhsh come on two motorcycles duly armed with TT pistol and made firing upon his brother Liaqat Khan who received i njuries and later on
succumbed to the same. It is further alleged in the FIR that the accused committed murder of his brother Liaqat Khan at instigation of the Ameer Bakhsh and co- accused Irfan.
3. The accused/applicant surrendered himself before this Cour t and requested for grant
of ad -interim pre arrest bail, hence ad -interim pre arrest bail was granted to the accused by
this Court vide order dated 11.06.2019.
4. I have heard the learned counsel for the parties and with their able assistance gone
through the record. Before dilating upon the material available on record, it would be better
to first discuss the objection taken by the learned State Counsel that the applicant has directly approached this Court instead of approaching trial Court. Suffice it to observe here that the
objection so taken is without any substance, because in exceptional circumstances, where the life of a person is under threat in case of directly approach the trial Court, then under such circumstances he can approach this Court. Admi ttedly, tribal enmity exists between both the
parties and the accused/applicant also filed an application under section 526, Cr.P.C. for transfer of case from Dera Murad Jamali to another District vide Criminal Bail Application
No.126 of 2018. thus, a genuine reason exists in favour of the accused to directly approach
this Court. Reliance is placed on case of Rais Wazir Ahmed v. The State 2004 SCMR 1167, wherein it was held that:
"It is true that normally a person, against whom a case has been registered, at the first 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 pe rson can
approach directly to the High Court by invoking its concurrent jurisdiction. Reference may be made to Sh. Zahoor Ahmed v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rafiq Ahmed Jilani v. The State 1995 PCr.L J 785; Agha Muhammad Jamali v. The State 1997 PCr.LJ 901 and
Shamrez Khan v. The State 1999 PCr.LJ 74. Besides it if such an application has been moved before the High Court and it has entertained and granted ad interim bail to the applicant then instead o f dismissing it on technical grounds it should have disposed it
of on merits".
5. At this stage, I would like to point out that extra -ordinary relief of pre -arrest bail is
meant for innocent persons to save them from humiliation and disgrace at the hands of police. The purpose of this remedy is to protect liberty and reputation of citiz ens, particularly
in a case where the circumstances reflects that it is a case to be that of further inquiry on the basis of material on record. The power to grant bail under section 498, Cr.P.C., is not additional to or independent to section 497, Cr.P.C., and even while granting pre -arrest bail
the provisions contained under section 497, Cr.P.C., are also to be kept in mind. However, the grant of bail or its refusal is essentially a matter of discretion to be exercised judiciously and not arbitrarily and the facts of each and every case is to be considered separately and
independently. Reasonable and plausible ground must exist for grant of bail before arrest. The concept of pre -arrest bail was developed on three presumptions, firstly the accused is
presum ed to be innocent till he is found guilty, secondly the accused should have a right to
prepare his defence and prove his innocence before the trial Court and thirdly the accused should not be punished before the findings of his conviction rendered by the C ourt.
6. The allegation in the FIR as well as in the statement under section, 161 Cr.P.C., of
eye-witnesses Phattan Khan and Abdul Sattar are that the co- accused committed murder of
the deceased Liaqat Khan at the instigation of the accused/applicant Ameer Bakhsh. A
specific role has been attributed to the co -accused who allegedly made firing upon the
deceased, whereas neither the accused/applicant was present at the time of occurrence nor such allegation are available on record that in his presence the acc used/applicant made any
consultation or conspiracy with the principal accused and prima facie there is also no evidence on record that at the instigation or abetment of the accused/applicant the co -accused
made firing upon the deceased.
7. So, I have no he sitation in mind to hold that the charge against the accused/applicant
is that he instigated principal accused and there is no direct evidence against him. In such circumstances, in my view there appears no reason to decline the bail to the person who admi ttedly at the time of incident was not present at the spot. Keeping in view the facts and
circumstances of the case and material placed on record, I am confident that the applicant has
made out a case of further inquiry and deserves confirmation of ad- interim pre -arrest bail.
For the reasons stated herein above, I confirm the interim pre -arrest bail, already
granted to the applicant/accused on the same terms and conditions.
Needless to say that the observations are tentative in nature, which shall not pre judice
the case of either side on merits nor the trial Court shall be influenced by the same during
course of trial.
Bail confirmed.
SA/106/Bal. Bail confirmed.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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