PLJ 2024 Cr.C. (Note) 295
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
ABID BASHIR--Appellant
versus
STATE etc.--Respondents
Crl. Misc. No. 58899-B of 2024, decided on 17.10.2024.
Criminal Procedure Code, 1860 (XLV of 1860)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 302, 109, 34, 337-A(i), 337-L(2), 337-F(i)--Pre-arrest bail, dismissal of--Allegation of--Committing murder--Nominated in FIR with specific allegation of murder--The petitioner though pleaded mala fide on part of complainant but there is nothing available on record to substantiate this plea, which consideration is one of prerequisites for grant of pre-arrest bail in a case involving non-bailable offence--There is no reason for false implication of petitioner in instant case--According to investigating officer, physical custody of petitioner is required to him for investigation purposes as well as recovery of weapon of offence and in that eventuality grant of pre-arrest bail at this stage would amount to stifle investigation--Bail dismissed.
[Para 5] B & C
2020 SCMR 313.
Pre-Arrest Bail--
----The relief of pre-arrest bail is extraordinary in its nature and there is complete different yardstick for same as compared to bail after arrest. [Para 5] A
Mr. Umar Hayat Bhatti, Advocate for Petitioner.
Mr. Muhammad Moeen Ali, Deputy Prosecutor General for State.
Rai Ashfaq Ahmad Kharal, Advocate for Complainant.
Date of hearing: 17.10.2024.
Order
Through this petition under Section 498, Cr.P.C. the petitioner seeks pre-arrest bail in case FIR No. 1902 dated 26.07.2024, for the offences under Sections 302, 109, 34, PPC [added offences under Sections 337A(i), 337L(2), 337F(i), PPC], registered at Police Station City B-Division, District Sheikhupura.
2. Facts in short narrated in crime report are that on 26.07.2024 at about 02:30 p.m. the petitioner and his co-accused launched an attack upon the complainant party, whereby they caused multiple injuries to the complainant besides committing the murder of his son namely Sikandar, hence, the crime report.
3. I have heard the arguments advanced by learned counsel for the petitioner as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant and have gone through the record with their assistance.
4. It divulges from the record that the petitioner is nominated in FIR with specific allegation of giving fist blow on the face of complainant which landed underneath his left eye and during his medical examination, this injury was duly observed by the doctor concerned. In this way, medical evidence is fully supporting the prosecution version against the petitioner. Furthermore, the prosecution witnesses in their statements under Section 161, Cr.P.C. have fully supported the prosecution version. During investigation so far conducted by the Investigating Officer, the petitioner has been found involved in the commission of offence, therefore, prima facie the petitioner is well connected with the commission of crime alleged against him.
So far as the contention of learned counsel for the petitioner that the injury attributed to the petitioner has been declared by the doctor concerned as “Shajjah-i-Khafifah” falling under Section 337A(i), PPC which is bailable in nature, for the reason, the petitioner is entitled to the premium of pre-arrest bail is concerned, I have noticed that according to the narration of FIR itself, petitioner is the person who initiated the incident by asking his co-accused namely Abbas Bashir that the complainant should not be spared and ultimately when complainant’s sons namely Hassan Raza and Sikandar stepped forwarded to rescue their father/complainant from the clutches of petitioner and his co-accused, the occurrence culminated in latter’s murder. Keeping in view the above mentioned facts, I am of the view that the above contention of learned counsel for the petitioner has no force in it.
5. I may observe here that the relief of pre-arrest bail is extraordinary in its nature and there is complete different yardstick for the same as compared to the bail after arrest. The petitioner though pleaded mala fide on the part of complainant but there is nothing available on the record to substantiate this plea, which consideration is one of the prerequisites for grant of pre-arrest bail in a case involving non-bailable offence. Reliance is placed on the case of “Abdul Aziz Memon v. The State” (2020 SCMR 313) wherein it has been held as under:
“……..Grant of pre-arrest bail is an extraordinary remedy, rooted into equity, to protect the honour and freedom of the innocent in criminal cases actuated by abuse of process of law for oblique motives and purposes; this protection cannot be extended in every run of the mil criminal case without grievously hindering the investigative process. View taken by the High Court, being well within the remit of law, does not call for interference. Petition fails. Leave refused…...”
Similar view has been reiterated in the case of “Ahtisham Ali v. The State” (2023 SCMR 975) wherein the Supreme Court of Pakistan held as under:
“7. It is a well settled exposition of law that the grant of pre-arrest bail is an extraordinary relief which may be granted in extraordinary situations to protect the liberty of innocent persons in cases lodged with mala fide intention to harass the person with ulterior motives. By all means, while applying for pre-arrest bail, the petitioner has to satisfy the Court with regard to the basic conditions quantified under Section 497 of the Code of Criminal Procedure, 1898 (“Cr.P.C.”) vis-à-vis the existence of reasonable grounds to confide that he is not guilty of the offence alleged against him and the case is one of further inquiry. In the case of Rana Abdul Khaliq v. The State and others (2019 SCMR 1129), this Court held that grant of pre-arrest bail is an extra ordinary remedy in criminal jurisdiction; it is a diversion of the usual course of law, arrest in cognizable cases; it is a protection to the innocent being hounded on trumped up charges through abuse of process of law, therefore a petitioner seeking judicial protection is required to reasonably demonstrate that the intended arrest is calculated to humiliate him with taints of mala fide; it is not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampers the course of Investigation. Ever since the advent of Hidayat Ullah Khan’s case (PLD 1949 Lahore 21), the principles of judicial protection are being faithfully adhered to till date, therefore, grant of pre-arrest bail essentially requires considerations of mala fide, ulterior motive or abuse of process of law, situations wherein Court must not hesitate to rescue innocent citizens; these considerations are conspicuously missing in the present case. While in the case of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427), this Court has discussed the framework and guidelines for granting bail before arrest under Section 498, Cr.P.C. by the High Courts and Courts of Session. It was held that the exercise of this power should be confined to cases in which not only a good prima facie ground is made out for the grant of bail in respect of the offence alleged, but also it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm. This Court laid down the following parameters for pre-arrest bail:-
(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 sub-section (2) of Section 497 of Code of Criminal Procedure i.e. unless he establishes the existence of reasonable 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 his arrest was being sought for ulterior motives, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him;
(e) Such a petitioner should further establish that he had not done or suffered any act which 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 at 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 instance i.e, the Court of Sessions, before petitioning the High Court for the purpose.
In the attending circumstances as discussed above, apparently there is no reason for false implication of the petitioner in the instant case. According to investigating officer, physical custody of petitioner is required to him for investigation purposes as well as recovery of weapon of offence and in that eventuality grant of pre-arrest bail at this stage would amount to stifle the investigation.
6. Due to the above mentioned circumstances, I am not inclined to grant extraordinary relief of pre-arrest bail to the petitioner. Consequently this petition is dismissed and the ad interim pre-arrest bail already granted to petitioner is recalled.
(A.A.K.) Bail dismissed
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