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Criminal Miscellaneous No. 2383 of 1985, decided on 27th October, 1985.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 458‑‑Bail, cancellation of‑‑Accused alongwith his co‑accused, criminally trespassing into complainants house and injuring complainant when resisted‑‑Accused identified by prosecution witnesses but making his escape good while co-accused apprehended‑‑No mala fide alleged in petition for bail before arrest, filed before Sessions Judge‑‑Pre‑arrest bail allowed by Sessions Judge cancelled in circumstances.

M. Aslam Riaz for Petitioner.

Tahir Qureshi for Respondents.

Date of hearing: 27th October, 1985,

Muhammad Ishaq petitioner has moved this petition for cancellation of pre‑arrest bail allowed to Abdul Jabbar respondent by the Sessions Judge, Bhakkar, in case registered against him and another under section 458, P.P.C.

2. The prosecution version is that on the night between 17th/18th February 1985, two persons with muffled faces trespassed into the house of the complainant /petitioner situate in Chak No.30/M.L. One of them was armed with a pistol and the other had a Sots. They commanded the petitioner to surrender the keys, ornaments and cash. The petitioner tried to apprehend the person who was armed with pistol, upon which the man armed with Sots gave him a blow on the head. The person armed with pistol, too, gave him a blow with the but of the pistol but the petitioner overpowered him. The man armed with Sots started giving blows to the petitioner but in the meantime his wife Mst. Razia Bibi woke up and intervened during the scuffle, the piece of cloth slipped from the face of the person who was armed with Sots. He was Abdul Jabbar, respondent herein: In the meantime, Muhammad Latif and Buts also reached the spot on hearing the alarm. They also identified the respondent and tried to apprehend him but he ran away by scaling over the wall. Ghulam Abbas was', however, apprehended at the spot.

3. Learned counsel for the petitioner contends that it was not at all a fit case for the grant of bail because in the bail application the respondent had not alleged male fide and the offence under section 458, P.P.C. falls within the prohibitory clause. The learned State counsel supports this application.

The learned counsel for the respondent, on the other hand, submits that the respondent has been falsely implicated due to enmity; he has joined the investigation and the injuries on the person of the complainant were simple in nature, therefore, (bail was rightly allowed.

4. Record has been perused. A certified copy of the bail application moved in the Sessions Court, has been placed on the file. It does not contain any specific allegation that the intended arrest would be tainted with male fides and this application merits success on that ground alone. Even on merits the respondent had no case for the grant of extraordinary concession of pre‑arrest bail. The allegations prima facie connect him with the commission of offence under section 458, P.P.C which fall within the prohibitory clause of section 497, Cr.P.C. The respondent was identified by as many as four persons. In the impugned order the Sessions Judge has made certain observations which are wholly uncalled for. He observed that the identification of the respondent by the witnesses "as alleged in the F.I.R. was not possible because he was escaping when allegedly the witnesses came and he must be with his back to the witnesses". It was not a stage for going deep, into the merits of the case and giving a definite finding that the identification by the witnesses "was not possible". According to the F.I.R besides the petitioner and his wife, Muhammad Latif and Buts P.Ws. had also identified the respondent and tried to apprehend him but he ran away by scaling over the wall. For the reasons best known to the sessions Judge, he has given a clearance chit to the respondent by holding that his identification by the witnesses was not possible. The impugned order shows lack of knowledge of the basic principles governing a case of pre‑arrest bail. The petition is, therefore, accepted and the bail allowed to the respondent by the Sessions Judge, Bhakkar, is cancelled. He shall be taken into custody forthwith.

S.G.D. Bail cancelled

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