2022 M L D 1845
[Balochistan (Sibi Bench)]
Before Zaheer- ud-Din Kakar, J
Sheikh ABDUL AZIZ ---Applicant
Versus
The STATE--- Complainant
Criminal Bail Before Arrest Application No.(s)27 of 2022, decided on 29th March, 2022.
(a) Criminal Procedure Code (V of 1898) ---
----S.498--- Penal Code (XLV of 1860), Ss. 435, 506, 147, 148 & 149--- Mischief by fire or
explosive substance with intent to cause damage, criminal intimidation, rioting, armed with
deadly weapon, common object ---Pre-arrest bail, grant of ---Delayed FIR ---Counter -blast
FIR---Scope ---Prosecution case was that the accused along with others while armed with
pistol set the machinery of a coal company on fire by use of petrol ---No specific role was
attributed to the accused ---First Information Report was lodged with an unexplained delay of
20 hours whereas distance between the police station and place of occurrence was 03 kilometers ---Prior to the present FIR, the accused had got lodged an FIR against labourers of
the coal company regarding damage caused to machinery, setting the coal mines on fire,
firing which resulted in the death of a driver and causing injuries to the company manager ---
Prima facie, instant FIR seemed to be counterblast just to save their skin from FIR lodged by the accused ---Case of accused fell within the ambit of S.497(2), Cr.P.C.--- Petition for grant
of pre -arrest bail was accepted.
Khair Muhammad and another v. The State through P.G Punjab and another 2021
SCMR 130 ref.
(b) Criminal Procedure Code (V of 1898) ---
----S.498--- Pre-arrest bail ---Direct application to High Court--- Scope ---Normally a person
against whom a case has been registered, at the first instance, may approach the original court having jurisdiction i.e. Sessions/Additional 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.
The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rafiq Ahmed Jilani v.
The State 1995 PCr.LJ 785; Shamrez Khan v. The State 1999 PCr.LJ 74 and Rais Wazir Ahmed v. The State 2004 SCMR 1167 ref.
(c) Criminal Procedure Code (V of 1898) ---
----S.498--- Pre-arrest bail ---Scope ---Concept of pre -arrest bail is an exceptional and extra -
ordinary relief, as such restricted to cases, which are the result of trumped- up charges ---In
order to get relief, applicant has to establish that the registration of case is the outcome of
mala fide and ulterior motives, and if the desired relief is not extended to him, he would certainly suffer irreparable loss to his reputation ---Relief of pre -arrest bail is a shield to
protect innocent persons qua highhandedness of individuals or authorities through false, motivated and malicious prosecution ---While granting pre -arrest bail, apart from the element
of mala fide and ulterior motives, the merits of the case can also be touched upon.
Khair Muhammad and another v. The State through P.G Punjab and another 2021
SCMR 130 and Meeran Bakhsh v. The State and another PLD 1989 SC 347 ref.
Inayat Marghazani for Applicant.
Amjad Khan Achakzai for the Complainant.
Muhammad Naeem Kakar, APG for the State.
Date of hearing: 28th March, 2022.
ORDER
ZAHEER -UD-DIN KAKAR, J.----Accused/applicant Sheikh Abdul Aziz was
granted ad- interim pre -arrest bail by this Court vide order dated 14.03.2021, in case FIR
No.11 of 2022 dated 12.03.2022, under Sections 435, 506, 147, 148, 149, P.P.C., registered at Police Station, Mach District Bolan.
2. Allegation against the accused/applicant is that on 11.03.2022 at about 5:10 p.m. he
along with co- accused persons, armed with Pistol, set the machinery on fire of Mughal Coal
Company situated at Mach by use of Petrol.
3. Arguments heard. Record perused.
4. Before dilating upon merits of the case, this Court would like to address the question
of jurisdiction in the matter of bail before arrest. 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/Additional 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 The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rafiq Ahmed Jilani v. The State 1995 PCr.LJ 785 and Shamrez Khan v. The State 1999 PCr.LJ 74, Rais Wazir Ahmed v. The State 2004 SCMR 1167.
Besides, the concept of pre -arrest bail is an exceptional and extra- ordinary relief, as
such restricted to the cases; which are the result of trumped- up charges. In order to get the
relief, applicant has to establish that the registration of case is the outcome of mala fide and
ulterior motives, and if the desired relief is not extended to him, he would certainly suffer irreparable loss to his reputation. Certainly, the relief of pre -arrest bail is a shield to protect
innocent persons qua highhandedness of individuals or authorities through false, motivated
and malicious prosecution. Therefore, while granting pre -arrest bail; apart from the element
of mala fi de and ulterior motives, the merits of case could also be touched upon. In this
regard, reliance is placed to the cases of Khair Muhammad and another v. The State through P. G Punjab and another 2021 SCMR 130 and Meeran Bakhsh v. The State and another PLD 1989 SC 347.
5. Now coming to the instant case, perusal of record reveals that no specific role is
attributed to the accused/applicant; rather collective role has been assigned to him. From over all analysis of the prosecution case, it manifests that whether the applicant participated in the occurrence in such manner as mentioned in the crime report as well as culpability of the applicant is an issue, to be best settled after recording evidence by the trial Court. The above facts lead me to draw an inference that prima facie, the prosecution lacks sufficient
incriminating material to connect the accused/applicant in commission of alleged offence and
chances of applicant's false implication with deliberation after consultation cannot be ruled out because as per record the alleged occurrence took place on 11.03.2022 at 5:30 p.m. but FIR was registered on 12.03.2022 at about 2:30 p.m. with the unexplained delay of about 20 hours, whereas the distance between the Police Station and place of occurrence is 03 Kilometer. In this regard, reliance can be placed to the case of Khair Muhammad and another v. The State through P. G Punjab and another 2021 SCMR 130.
6. Record reveals that prior to the instant FIR, the accused/applicant registered FIR
No.10 of 2022 dated 11.03.2022, under Sections 302, 324, 109, 147, 148, 149, P.P.C., at Police Station, Mach, District Bolan against the labourers of Mughal Coal Company regarding the damage caused to machinery, setting the coal mines on fire and firing which resulted in the death of driver Muhammad Mushtaq Abbasi and causing injuries to Company Manager Jamshaid Ullah Dawar. Thus, Prima facie the instant FIR seems to be counterblast just to save their skin from FIR No.10 of 2022, lodged by the accused/applicant.
7. Besides, Section 435, P.P.C. does not fall within the ambit of prohibitory clause of
Section 497, Cr.P.C, whereas Section 506, P.P.C. is bailable in nature. Further, the accused/applicant has joined the investigation; no useful purpose would be served by sending him behind the bars.
8. In view of facts and circumstances and keeping in view the material available on
record, I am persuaded that the case of the accused/ applicant squarely falls within the ambit of subsection (2) of Section 497, Cr.P.C entitling the accused/applicant for relief sought for. As such, the application is allowed. The ad- interim pre -arrest bail granted to
accused/applicant by this Court vide order dated 14.03.2022 is hereby confirmed.
The observations made hereinabove are tentative in nature and same shall not
influence merits of the case at the trial.
SA/81/Bal. Bail granted.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,
let us know.