P L D 2021 Supreme Court 708
(a) Criminal Procedure Code (V of 1898)---
----S. 498---Pre-arrest bail, grant of---Grounds---Mala fides of complainant---Scope---Mala fide being a state of mind could not always be proved through direct evidence, and it was often to be inferred from the facts and circumstances of the case.
(b) Criminal Procedure Code (V of 1898)---
----S. 54---Police Order [22 of 2002], Art. 4(1)(j)---Police Rules, 1934, R. 26.1---Power of police to arrest an accused---Scope---Ordinarily no person was to be arrested straightaway only because he had been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer felt satisfied that sufficient justification existed for his arrest---Investigating officers should not mechanically make the arrest of a person accused of having committed a cognizable offence, rather they must exercise their discretion in making the arrest of such person judiciously by applying their mind to the particular facts and circumstances of the case and consciously considering the question: what purpose would be served and what object would be achieved by arrest of the accused person.
(c) Criminal Procedure Code (V of 1898)---
----S. 498---Constitution of Pakistan, Arts. 9, 10-A & 14(1)---Pre-arrest bail---Constitutional grounds for pre-arrest bail stated.
The power of the High Courts and the Courts of Sessions to grant pre-arrest bail, first and foremost, must be examined in the constitutional context of liberty, dignity, due process and fair trial. Pre-arrest bail was in the nature of a check on the police power to arrest a person. The non-availability of incriminating material against the accused or non-existence of a sufficient ground including a valid purpose for making arrest of the accused person in a case by the investigating officer would as a corollary be a ground for admitting the accused to pre-arrest bail, and vice versa. Reluctance of the courts in admitting the accused persons to pre-arrest bail by treating such a relief as an extraordinary one without examining whether there was sufficient incriminating material available on record to connect the accused with the commission of the alleged offence and for what purpose his arrest and detention was required during investigation or trial of the case, and their insistence only on showing mala fide on part of the complainant or the police for granting pre-arrest bail did not appear to be correct, especially after recognition of the right to fair trial as a fundamental right under Article 10A of Constitution. Protection against arbitrary arrest and detention was part of the right to liberty and fair trial.
(d) Criminal Procedure Code (V of 1898)---
----S. 498---Pre-arrest bail, grant of---Grounds---Mala fides of complainant---Scope and proof---In many cases, accused persons were granted pre-arrest bail after the court found that there were no reasonable grounds for believing their involvement in the commission of the alleged offences and the court did not require independent proof of mala fide on part of the police or the complainant before granting such relief---Despite non-availability of the incriminating material against the accused, his implication by the complainant and the insistence of the police to arrest him were the circumstances which by themselves indicated the mala fide on the part of the complainant and the police, and the accused need not lead any other evidence to prove mala fide on their part.
(e) Penal Code (XLV of 1860)---
----Ss. 109 & 120-B---Abetment and conspiracy---Proof---Court must base its conclusion as to involvement of an absentee accused as abettor or conspirator on some solid material collected during the course of investigation, and not on surmises or conjectures, either tentatively at bail stage or finally at judgment stage---Conspiracy to commit a crime by its very nature was usually secret, and could not be proved by direct evidence in most cases, however, it did not mean that the prosecution was absolved from its duty to prove the allegation of conspiracy, or that mere allegation of conspiracy was sufficient for holding the accused liable---In case of non-availability of direct evidence, the police must collect during investigation, and the prosecution must lead during trial, such circumstantial evidence from which a court could draw a legitimate inference of the existence of conspiracy and involvement of the accused in that conspiracy.
(f) Criminal Procedure Code (V of 1898)---
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