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Criminal Petition for Special Leave to Appeal No. 189 of 1978, decided on 1st June 1978.

(On appeal from the order dated 17‑5‑1978 of the Lahore High Court passed in Cr. Misc. No. 1872/B of 1978).

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

‑‑ S. 497‑Bail before arrest‑Question raised involving inquiry into factual matters and such matters not to be undertaken while deciding bail application‑Grant of bail‑A discretionary matter High Court in refusing bail before arrest no: exercising its discretion arbitrarily or capriciously, interference declined.

Qureshi Mahmud Ahmad, Advocate Supreme Court and Muhammad Aslam Chaudhary, Advocate‑on‑Record for Petitioner.

Nemo for the State

Date of hearing : 1st June 1978.

.‑This is a petition for leave to appeal against the order dated 17‑5‑1978 of the Lahore High Court, passed in Cr. Miscellaneous No. 1872/B of 19%8, whereby bail a.‑fore arrest was refused to the petitioner, who is an accused in a case registered against him and others under sec tions 447/440/342/ 447/440/342/148 and 149 P. P. C. , According to the F. I. R. on 21‑4‑1978, the petitioner along with several other persons, while armed with deadly weapons, trespassed into the fields of the complainant and destroyed the crops standing therein. They also allegedly wrongfully restrained and confined Bashir Ahmad and threatened the complainant with dire consequences. The motive for the crime is stated to be that the petitioner's party wanted to take forcible possession of the land.

All the accused were arrested, except the petitioner herein, who was granted interim bail before arrest by the Sessions Judge. However, when the matter came up for confirmation of the interim bail, the Sessions Judge declined to confirm it, observing that there was nothing on the record to show that the petitioner was in possession of any portion of the land purchased by the complainant party; that he had, along with his co‑accused, tres passed into the said land and destroyed the crops sown by the complainant; that there was a serious allegation against him of wrongfully confining Bashir Ahmad P. W.; that he had acted in a highhanded manner; and that he had not joined the investigation after obtaining pre‑arrest bail.

Aggrieved by the above order, the petitioner moved the Lahore High Court. This petition was also dismissed by a learned Judge with the observa tion that it was not such a case where charges were trumped up with ulterior motive. Hence, this petition for leave to appeal.

Before us, it is submitted that the petitioner has been involved in this case maliciously. 1n fact, according to him, the father of the complainant purchased land from one Asghar Hussain out of a joint khata in which the petitioner's brothers and sisters held shares and that there was no question of the petitioner entering the land with a view to destroying the crop as the land in dispute was barren and uneven and no crop could be sown therein. The entries in the Khasra Girdawari were false and proceedings for their rectification were pending before the Naib‑Tehsildar. The story of destroying the standing crops by the petitioner and his co‑accused was false and a trumped up one.

We have heard the learned counsel for the petitioner and perused the available record.

We observe that the questions raised involve inquiry into factual matters, which cannot be undertaken while deciding a bail application. Moreover, the grant of bail is a discretionary matter and since in refusing bail before arrest to the petitioner the learned Judge in the High Court has not exercised discretion arbitrarily or capriciously, we are not inclined to interfere with it.

This petition is accordingly dismissed:

Petition dismissed.

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