2013 P Cr. L J 1583
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
JUMA KHAN ---Applicant
Versus
The STATE and another ---Respondents
Criminal (Cancellation) Bail Application No.514 of 2012, decided on 10th July, 2013.
(a) Criminal Procedure Code (V of 1898) ---
----S. 498 ---Pre-arrest bail, grant of ---Pre-conditions ---Consideration for pre -arrest bail and post -
arrest bail are entirely different ---Extraordinary concession of pre -arrest bail can be granted only
in cases of exceptiona l nature and that power can only be exercised when either arrest being for
ulterior motive such as humiliation; unjustified harassment; prosecution motivated to cause
irreparable injury to reputation; motivation of police on political consideration; or whe n accused
has been implicated falsely.
Rana Muhammad Arshad v. Muhammad Rafique PLD 2009 SC 427 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497(5) ---Penal Code (XLV of 1860), S.324 ---Pre-arrest bail, cancellation of ---Attempt to
commit q atl-e-amd---Civil litigation ---Trial Court granted pre -arrest bail to accused on two
grounds i.e. affidavits of injured witnesses and existence of civil dispute between parties ---
Validity ---Both the grounds were capricious and whimsical and were of no avai l to accused, as
one of the deponents admitted time, place and mode of occurrence, while the other deponent was
not eye -witness of occurrence ---Existence of civil dispute between parties could not be
considered a relevant factor for concession of anticipat ory bail because it could have been also a
motive to motivate accused for commission of alleged offence ---Prima facie available data
suggested believing that accused had committed a non -bailable offence, thus he was not entitled
for extraordinary concessio n of anticipatory bail ---If guilt of accused had been established
through reliable evidence or bail granting order was perverse, capricious or whimsical, then it
could be reversed at any time and interest of justice also demanded that fair handed treatment
should be meted out to prosecution ---High Court set aside the order passed by Trial Court
granting pre -arrest bail to accused ---Bail was cancelled in circumstances.
S. A. M. Qaudri for Applicant.
Abdullah Baloch for Respondent No.2.
Miss Sarwat Hina, Additional Prosecutor -General for the State.
Date of hearing: 12th June, 2013.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through present application, Juma
Khan (complainant) of case F.I.R. No.39 of 2012, under section 324 of the P.P.C., regis tered at
Pishin Police Station, District Pishin, seeks cancellation of anticipatory bail granted to
respondent No.2 Sher Ali by the learned Sessions Judge, Pishin (the "trial Court") vide its order
dated 24th September, 2012 (the "impugned order").
2. Precisely stated, it is the case of the prosecution that on the fateful day i.e. 16th May,
2012, the nephews of complainant, namely, Noor Din and Abdul Hanan were subjected to
indiscriminate firing by the respondent No.2 near Watan Autos. Surkhab Road, Pishi n, when
they were proceeding towards graveyard on their motorcycle in order to attend the burial
ceremony of deceased Bilal Ahmed, due to which they received firearm injuries. It is further the
case of the prosecution that besides the nephews of the compla inant, two passersby; viz, Abdul
Nasir and Pir Muhammad also sustained firearm injuries as a result of such firing.
The learned trial Court initially granted ad interim bail to the respondent No.2 and,
subsequently, after hearing the parties, confirmed the same through the impugned order, the
operative portion whereof reads as under: --
"I have heard the arguments advanced by both the counsel and perused the record, in the
light of arguments advanced by both the counsel coupled with the record reveal t hat two injured
Abdul Nasir and Pir Muhammad have exonerated the present applicant by means of affidavits
and record further reveals that there is property dispute between the parties.
Keeping in view of above, I am inclined to confirm the at ad -interim bail order dated 6th
June, 2012 which is hereby confirmed."
4. Mr. S.A.M. Qaudri, learned counsel for the applicant, has sought cancellation of pre -
arrest bail on the following grounds: --
(i) that specific role of firing was attributed to the responde nt No.2, who caused firearm
injuries on the persons of Noor Din, Abdul Hanan, Abdul Nasir and Pir Muhammad and medical
evidence supports the version of F.I.R.;
(ii) that the F.I.R. was lodged without any delay and the respondent No.2 was nominated
therei n as a sole perpetrator;
(iii) the case of the respondent No.2 did not qualify for pre -arrest bail and the impugned order
has been delivered in clear violation of law on the point of bail before arrest, which is an
extraordinary concession and can only b e extended in exceptional cases;
(iv) the impugned order does not conform to the criteria laid down by the superior Courts and
the same being perverse, capricious, arbitrary and whimsical is unsustainable, and
(v) the impugned order does not purport a single word regarding the mala fides on the part of
the complainant or police authorities, which is sine qua non for grant of anticipatory bail.
5. On the contrary, Mr. Abdullah Baloch, learned counsel for the responden t No.2, stated
that the respondent No.2 has been involved in a false case on account of a civil dispute between
the parties as observed by learned trial Court, while granting bail to the respondent. He further
submitted that the respondent No.2 was exonera ted by the injured witnesses and there is direct
conflict between the ocular and the medical evidence. He, while concluding his arguments,
further stated that the impugned order was passed on 24th September, 2012, as such, it would not
be appropriate to re verse the same after a period of six months, that too, without any reasonable
grounds.
6. I have heard the learned counsel for the parties at length and have, gone through the
record with their valuable assistance. Admittedly, there is no cavil to the pr oposition that section
498 of the Cr.P.C. empowers the Court of Session and the High Court to grant pre -arrest bail in
cases of exceptional nature, but these powers have to be exercised when the preconditions laid
down by the superior Courts are satisfied. Therefore, in order to see as to whether the impugned
order is legally sustainable in the light of principles, governing the grant of the anticipatory bail
before examining merits of the case, it would be relevant to make a reference to the framework
within which the guidelines according to which, the jurisdiction vesting in the High Courts and
the Court of Session is to be exercised in the authoritative judgment of Rana Muhammad Arshad
v. Muhammad Rafique, PLD 2009 Supreme Court 427 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 re asonable grounds 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 h is arrest was being sought for
ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and
to disagree and dishonour him;
(e) such a petitioner should further establish that he had not done or suffered any act whi ch
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 of law; and finally that;
(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to
bail before arrest, must, in the first instance approach the Court of first instant i.e. the. Court of
Session, before petitioning the High Court for the purpose."
7. The aforementioned observations of the Hon'ble Supreme Court of Pakistan clearly
demonstr ate that consideration for pre -arrest bail and post -arrest bail are entirely different. The
extraordinary concession of pre -arrest bail can be granted only in cases of exceptional nature and
that power can only be exercised when preconditions i.e. either a rrest being for ulterior motive
such as humiliation an unjustified harassment; prosecution motivated to cause irreparable injury
to reputation; motivation of police on political consideration; or when the accused has been
implicated falsely.
8. While con sidering the case in hand on the touchstone of aforementioned criteria, it can
safely be concluded that the reasons mainly prevailed with the learned trial Court i.e. existence
of civil dispute between the parties and affidavits of two injured witnesses ar e absolutely not
relevant to grant pre -arrest bail. They may be relevant or sufficient for post -arrest bail because
consideration for pre -arrest bail and post -arrest bail are entirely different. The learned trial Court
has failed to appreciate that distinc tion in the instant case. According to the data available on the
record, the accused/respondent has been charged for firing upon the complainant's nephews,
resulting in injuries to four persons. In such circumstances of the case, intention to kill is not
open to any doubt at least at least at the stage of bail, when vital parts of the bodies appear to
have been aimed at. A tentative perusal of the record shows that the respondent No.2 has been
figured in the promptly lodged F.I.R. as a sole perpetrator and the version of F.I.R. is also
corroborated by the medical evidence. The impugned order also does not purport a single word
regarding the mala fide on part of the complainant or police officials, which was sine qua non for
evaluating a case of anticipatory bail. As has observed hereinabove, the bail before arrest is an
extraordinary relief, the scope whereof is narrow and which can only be extended to a person,
who is either innocent or who has not committed a non -bailable offence. Nevertheless, the
responde nt No.2 does not fall in the said category. The operating portion of the impugned order,
mentioned hereinbefore, reveals that the learned trial Court has granted pre -arrest bail to the
respondent No.2 on two grounds i.e. affidavits of the injured witnesses and existence of civil
dispute between the parties. I am afraid that both the grounds, being capricious and whimsical,
are absolutely of no avail to the respondent No.2, for the simple reason that deponent Abdul
Nasir has admitted the time, place and mode of occurrence, while the second deponent i.e.
Faqeer Muhammad is father of injured Pir Muhammad, who is not an eyewitness of the
occurrence. Similarly, the existence of civil dispute between the parties cannot be considered a
relevant factor for concessio n of anticipatory bail, because it could have been also a motive to
motivate the respondent No.2 for commission of the alleged offence. Prima facie, the available
data suggests believing that the respondent No.2 has committed a non -bailable offence, thus, he
was not entitled for the extraordinary concession of anticipatory bail.
9. Reverting to the next contention of the learned counsel for the respondent No.2 regarding
the reversal of impugned order after a lapse of six months, is also devoid of force. I n this respect,
I am of the considered view that neither the crimes, nor the illegality of any impugned order die
or diminish with the passage of time. If the guilt of an accused person has been established
through reliable evidence or the bail granting or der has been found perverse, capricious or
whimsical, then it could be reversed at any time and the interest of justice also demands that fair
handed treatment should be meted out to the prosecution.
In view of the above discussion, this application is allowed and the impugned order
passed by the learned trial Court is set aside and declares it being unlawful and inconsistent with
the criteria laid down by the superior Courts as discussed above. Resultantly, the bail granted to
the respondent No.2 is her eby cancelled. Officer is directed to send a copy of this order to the
learned trial Court.
MH/73/Bal. Bail cancelled.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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