2020 Y L R 1077
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
ABDUL JABBAR and another ---Applicants
Versus
SARDAR KHAN RIND and another ---Respondents
Criminal Bail Cancellation Application No.85 of 2019, decided on 21st October, 2019.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497(5) ---Penal Code (XLV of 1860), Ss. 302, 324 & 34 ---Anti-Terrorism Act (XXVII
of 1997), S. 7 ---Qatl-i-amd, attempt to commit qatl -i-amd, common intention ---Act of
terrorism ---Application for cancel lation of bail ---Implication of accused through
supplementary statement ---Absconsion of accused --- Further inquiry --- Scope ---Complainant
sought cancellation of pre -arrest bail granted to accused on the ground that the accused had
been an absconder and tha t bail had been granted in wrong exercise of discretion by the Trial
Court ---Held; nothing was available on record to show that the accused was aware about his
implication --Accused was not nominated in the FIR with any role but he was subsequently
implicat ed by the complainant in supplementary statement, with improved version of the
occurrence ---Confirmation of ad -interim pre -arrest bail of the accused by the Trial Court in
view of the scope of further inquiry could not be termed as illegal or in wrong exer cise of
discretion as apart from mala fide and arrest for ulterior motives such as humiliation and
unjustified harassment, scope of further inquiry could also be made a basis for
grant/confirmation of pre -arrest bail, primarily depending upon the facts and circumstances
of each case ---Allegation of abusing or misusing the concession of bail by the accused was
not supported by affidavit of any witness ---Application for cancellation of pre -arrest bail was
dismissed.
Meeran Bux v. State PLD 1989 SC 347 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497 ---Bail---Principles ---Scope ---Grant or refusal of bail in criminal cases primarily
depends upon the facts and circumstances of the case and no hard and fast rule can be laid
down in that regard.
Jamal -ud-Din's case 1985 SCMR 1949 rel.
(c) Criminal Procedure Code (V of 1898) ---
----S. 498 ---Pre-arrest bail ---Further inquiry ---Scope ---Scope of further inquiry could also be
made a basis for grant/confirmation of pre -arrest bail, primarily depending upon t he facts and
circumstances of each case.
Meeran Bux v. State PLD 1989 SC 347 rel.
Arif Achakzai and Zafar Hassan Jamote for Applicants.
Date of hearing: 15th October, 2019.
ORDER
NAEEM AKHTAR AFGHAN, J. ---In the instant application, the following relief
has been claimed by the applicants:
"It is, therefore, in view of the above submissions and circumstances, respectfully
prayed that this Hon'ble court may graciously be pleased to set aside the order dated
24.4.2019 passed by Special Judge Anti -Terrorism Court -I Quetta by accepting the
instant application and in consequence thereof, sent the private respondent/accused
behind the bars, in the interest of justice, equity and fair play".
2. After hearing learned counsel for the applicants, we have peru sed the available record
which reveals that FIR No.115/2010 was lodged with Police Station Sariab on 5th July 2010
by applicant No.1 under sections 302, 324, 34, P.P.C. read with section 7 of Anti -Terrorism
Act, 1997 against unknown accused with the allega tion that in the evening of the occurrence
three unknown accused while riding on a motorcycle came and made firing upon Mir
Muhammad Nawaz with pistols; that when Saadullah and Zahoor Ahmed went ahead to save
Mir Muhammad Nawaz, the three unknown accused a lso made firing upon them and while
making indiscriminate firing, the three unknown accused succeeded in fleeing away.
It was further reported that due to indiscriminate firing made by unknown accused
Mir Muhammad Nawaz, Saadullah, Zahoor Ahmed and one pa sserby child Nauroz Khan
became severely injured; that Mir Muhammad Nawaz and the minor passerby Nauroz Khan
succumbed to the injuries.
It was further stated in FIR that unknown accused have committed murder of Mir
Muhammad Nawaz and passerby Nauroz and h ave caused firearm injuries to Saadullah and
Zahoor Ahmed for unknown reason.
3. Record reveals that the complainant made a supplementary statement on 6th July
2010 by improving version of the occurrence with the statement that from one side of the
road th ree unknown persons riding on a motorcycle appeared and they made firing while on
the other side of the road a black color Prado vehicle appeared wherefrom 6/7 got down and
they also made firing due to which Mir Muhammad Nawaz became -severely injured and
succumbed to the injuries while Saadullah and Zahoor Ahmed who had sustained bullet
injuries were shifted to the hospital.
It was further alleged in the supplementary statement by applicant No.1 that in his
FIR he had mentioned that 6/7 persons got down fr om black Prado vehicle but same was not
incorporated in FIR.
4. In his supplementary statement, the applicant stated that those 6/7 persons who had
made firing were identified by him as Sardar Yar Muhammad Rind, Sardar Khan son of
Sardar Yar Muhammad, Sard ar Sher Muhammad, Nasir Hussain and Sabzal.
5. It reveals that incomplete Challan No.59/2011 was submitted on 23rd June 2011,
wherein respondent and co -accused nominated in supplementary statement were shown
absconders.
6. Due to availing of bail by co -accused supplementary Challans were submitted on 8th
May 2016 and 14th May 2019.
7. Record reveals that on 25th June 2018 respondent surrendered before Special Judge
Anti-Terrorism Court -I Quetta (hereinafter "the trial Court") for grant of pre -arrest bail. T he
respondent was granted ad -interim pre -arrest bail by the trial Court vide order dated 25th
June, 2018.
8. The ad -interim pre -arrest bail of respondent has been confirmed by the, trial Court
vide order dated 24th April 2019 against which the instant appl ication has been filed on the
ground that in view of long standing abscondence, the respondent was not entitled for grant
of pre -arrest bail and on the ground that respondent has been granted pre -arrest bail in wrong
exercise of discretion by the trial Cou rt.
9. There is nothing on record to show that the respondent was aware about his
implication on the basis of supplementary statement of the applicant.
Since the applicant was not nominated in the FIR with any role of whatsoever nature
and he was subsequently implicated by the complainant in supplementary statement dated 6th
July 2010 with improved version of the occurrence, hence in such circumstances the grant of
pre-arrest bail to the respondent No.1 by the trial Court cannot be termed as wrong exercise
of discretion.
The trial Court has given valid reasons for confirmation of ad interim pre -arrest bail
of respondent.
10. The scope of pre -arrest bail was widened in Jamal -ud-Din's case 1983 SCMR page -
1949, wherein Hon'ble Supreme Court reiterated the principles for grant of pre -arrest bail
and also held that the grant or refusal of bail in criminal cases primarily depends upon the
facts and circumstances of each case and no hard and fast rule can be laid down in this
regard.
Similarly, in the cas e of Meeran Bux v. State PLD 1989 Supreme Court 347, the
cancellation of bail before arrest ol the appellant by the High Court was set aside and the
order passed by learned Sessions Judge granting pre -arrest bail to the appellant on the ground
of further i nquiry was restored by the Hon'ble Supreme Court and it was held as follows:
"Apart from this we find that the Sessions Judge granted the pre -arrest bail to the
appellant after considering the merits of the case inasmuch as he inter alia observed
that the injury alleged to have been caused by the appellant to the leg of the deceased
by gunshot was according to the post -mortem note, neither fatal nor was caused on
the vital part of the body and was declared to be simple and that it was a case of
further inq uiry so far as the appellant is concerned……….
.....Since the appellant remained on bail for more than one year before the bail was
cancelled by the High Court without abusing the concession of bail in any manner and
the reason given by the learned Sessions Judge for granting pre -arrest bail that the
injury was on non -vital part of the body of the deceased i.e. thigh and was simple,
was not without foundation, we would, therefore, in the circumstances, set aside the
impugned order of the High Cour t and restore the order of the Sessions Judge
granting the pre -arrest bail"
11. In view of the dictum laid down by the Hon'ble Supreme Court, the confirmation of
the ad -interim pre -arrest bail of the respondents by the learned Special Judge in view of th e
scope of further inquiry cannot be termed as illegal or in wrong exercise of discretion as
apart from mala fide and arrest for ulterior motives such as humiliation and unjustified
harassment, the scope of further inquiry can also be made a basis for gran t/confirmation of
pre-arrest bail, primarily depending upon the facts and circumstances of each case.
The allegation of abusing or misusing the concession of bail by the respondents is not
supported by affidavit of any witness.
For the above reasons, the application is dismissed in limine.
SA/137/Bal. Petition dismissed.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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