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Criminal Miscellaneous No. 1786/8 of 1975, decided on 30th July 1975,

(a) Criminal Procedure Code (V of 1898)-

-- S. 498-Bail before arrest-Main considerations for grant of Whether prosecution motivated by malice and accusation such as could be trumped up by adversaries so as to cause irreparable injury to citizen's name and liberty-Accused however bound to show his entitlement to bail even on merits.-[Bail].

The main considerations for the Court at the stage of grant of bail before arrest are whether the prosecution is motivated by malice and whether the accusation against the accused is of such a nature that it could have been trumped up by his adversaries. It is, however, the duty of an accused person asking for an order of bail before arrest to show that even on merits he is entitled to an order of grant of bail. Therefore, it become clear that the foremost consideration in the mind of the Court in dealing with an application for bail before arrest is whether irreparable injury to the name and liberty of a citizen would result if the bail is to be refused. But in considering this question, the merits of the case and the evidence in possession of the prosecution had also to be kept in view and the accused has to make out a case on merits also.

Abdul Hayee Khan v. The State and another P L D 1958 S C (Pak.) 169 not applicable.

Hidayatullah's case P L D 1949 Lah. 21 and Sadlq Ali's case P L D 1966 S C 589 rel.

Khushi Muhammad's case P L D 1953 F C 170 ref.

(b) Criminal Procedure Code (V 1of 1898)

S. 498-Bail before arrest-High Court once exhausting its powers by passing order in case of bail before arrest after considering facts of case-Sessions Court not well advised to grant bail without there being any change in circumstances.-[Bail].

If it is conceded that in every case where the High Court, after looking (into the facts has refused bail before arrest, the lower Court may embark afresh upon appraisal of facts without there being any new development in the case the result will be complete chaos and irreconcilable conflict between the High Court and the lower Courts. The law does not postulate such a conflict. The High Court passes orders in cases of bail before and after arrest under section 498, Cr. P. C. and once the higher Court has exhausted its powers by passing an order in a case of bail before arrest considering the facts of the case, the Sessions Court will not be well advised in granting bail without there being any change in the circumstances of the case, for instance, any concession on behalf of the prosecutor the refusal of the prosecution witnesses to support the case or the recalcitrance of the prosecution to advance the case.

(c) Criminal Procedure Code (V of 1898)-

Ss. 497 & 498-Bail-Completion of investigation-May be good ' ground for grant of bail in cases other than those covered by prohibi tion contained in subsection (1) of S. 497 but not so in cases punishable . with death, imprisonment for life, or 10 years' R. 1.-[Bail].

The completion of investigation may be a good ground for grant of bail in cases other than those covered by the prohibition contained in subsec tion (1) of section 497, Cr. P. C., but in cases which are punishable with death, imprisonment for life or ten years' R. I., the completion of investiga tion may not be a good ground for grant of bail.

(d) Criminal Procedure Code (V of 1898)-

--- Ss. 497 & 498 read with Penal Code (XLV of 1860), S. 149 Accused named in several F. 1. Rs. charged for leading mobs and incit ing them to violence-Bail granted to some on ground of none of them having been charged of setting fire to any building or carrying any incendiary material-Section 149, P. P. C., held, treats all members of unlawful assembly alike-Some offence likely to be committed in achievement of common object-All members of assembly, whether they do or do not commit any overt act equally liable-Penal Code (XLV of 1860), Ss. 436, 452, 379, 148 & 149.-[Bail-Common object].

Muhammad and another v. The State P L D 1962 S C 450 ref.

(e) Criminal Procedure Code (V of 1898)-

S. 497-Bail-Evidence at pretrial stage indicating case as falling within one of Exceptions to liability mentioned in Penal Code, 1860 Case taken out of prohibition contained in S. 497(1)-Court may, in such eventuality, consider question of grant of bail-Mere fact, however, of accused having considered themselves as being motivated by an altruistic urge and for lodging their protest-Will not legally place them in any position of advantage vis-a-vis an ordinary criminal if they destroy properties of relatives of accused against whose crime :they were protesting.-[Bail].

Amir v. The State 1973 P Cr. L 1205 ref.

Talib Haider Rizvi for Petitioner.

S. M. Zafar for Respondents.

Muhammad Nawaz Toor for the State.

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