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Criminal Miscellaneous No.2230/B of 1986, decided on 22nd September, 1986.

---S. 498--Penal Code (XLV of 1860), Ss. 307 & 326/148/149--Pre-arrest bail, grant of--Principles considered--Accused named in F. I. R.--Definite role attributed--No malice or motive on part of police against accused alleged--Hatchets allegedly used by accused, yet to be recovered--Mere previous enmity between parties would not bring case within rule laid down by superior Courts justifying pre-arrest bail--Accused not intended to be arrested for any ulterior motive and investigation should not be frustrated--Bail refused in circumstances.

Q. M. Salim and Mian Attaur Rehman for Petitioners.

Zafar Yasin for the State.

Muhammad Ibrahim for the Complainant.

This is a petition for pre-arrest bail moved by the two petitioners who alongwith three others are accused in a case under section 307/326/ 148/149, P.P.C. registered at Police Station Saddar, Hafizabad on 22-7-1986.

2. Prosecution case, briefly stated, is that on 22-7-1986 at about 10-00 a.m., the present petitioners armed with hatchets alongwith their co-accused Azim, Bashir and Nazir respectively armed with hatchet, gun and Sota assaulted Muhammad Hanif and caused him multiple injuries. It is alleged that Ghulam Qadir petitioner gave a hatchet blow on the left arm of the injured and Anwar petitioner caused an injury on his left thigh with the blunt side of the hatchet. Azam accused also allegedly gave a hatchet blow on the left leg of the injured. Bashir accused who was allegedly armed with a gun struck a blow with it on the back of Muhammad Hanif injured. Similarly, Nazir accused also allegedly gave a Sota blow on the back of the injured. Injuries attributed to Ghulam Qadir petitioner and Azim co-accused were grievous whereas other injuries are stated to be simple. The injured is still in the hospital.

3. Petitioners alongwith their co-accused approached the learned Sessions Judge for pre-arrest bail. They were allowed interim bail. Petitioners absented themselves on the adjourned date. Learned Additional Sessions Judge by order dated 3-8-1986 rejected the bail petition on merits observing that "since the petitioners are named in the F.I.R. with their specific role. Injured is still admitted in the hospital. Recovery of weapon of offence is to be made. Therefore, no case for pre-arrest bail is made out". Petitioners have now filed the present petition in this Court. They were granted ad interim bail by this Court on 6-8-1986.

4. I have heard the learned counsel for the petitioners, the learned State counsel as also the learned counsel for the complainant.

5. It is contended by the learned counsel for the petitioners that the petitioners have been falsely involved in the case on account of previous enmity between the parties. He has referred to the F.I.R. to show that it was admitted therein that there was a background of enmity between the complainant party and the accused. It is stated in the F.I.R. that about three years ago, there was a fight in which Shafaat Ali was injured and the complainant party were the accused in that case. Learned counsel has further submitted that the injured Hanif has allegedly sustained five injuries for which five persons have been implicated, attributing one injury to each of the accused. According to the learned counsel, number of the injuries are not proportionate to the number of the accused and the prosecution has cast the net too wide so as to rope in as many persons as possible. Learned counsel for the petitioners has next argued that the number and nature of injuries suffered by the injured coupled with the fact that Anwar petitioner allegedly used the hatchet from the blunt side and Bashir co-accused did not fire any shot from the gun negate the intention to kill and as such offence under section 307, P.P.C. is not made out.

6. Learned counsel for the complainant and the State have vehemently opposed the petitioners' prayer for pre-arrest bail. They have submitted that the condition necessary for granting pre-arrest bail namely the mala fides of the intended arrest, does not exist in the present case and as such it is not a fit case for the grant of bail. They have argued that the petitioners are named in the F.I.R. and a definite role has been attributed to them. It cannot, therefore, be said that the intended arrest of the petitioners was motivated by any ulterior reasons or by any malice on the part of the police. It is further maintained that if the pre-arrest bail is granted to the petitioner, this would amount to frustrating the investigation because the weapons of offence have yet to be recovered from the petitioners.

7. I have considered the submissions made by the learned counsel for the parties. Law regarding the pre-arrest bail as distinguished from the bail after arrest is well-settled. It has been laid down in a number of cases that power to grant pre-arrest bail is to be exercised sparingly and before granting the anticipatory bail, Court is to satisfy itself that the accused /petitioner is intended to be arrested for ulterior motives and with a view to harass and humiliate him. It has also been observed that the Court must also consider whether the grant of pre-arrest bail would not frustrate the investigation in the matter of recoveries etc. Reference may usefully be made to the following observations of a Full Bench of this Court in "Shabbir Ahmad v. State" P L D 1981 Lah. 599:---

"The criteria laid down in Hidayat Ullah Khan's case has not undergone any change so far. The three principles laid down therein have to be strictly followed. This power should sparingly be exercised in appropriate cases. The Courts should strictly avoid the exercise of this power at random, which is likely to embarrass the prosecution in investigation as usually is the general complaint. The balance has to be kept and each case to be dealt with on its own merits... The Court should seriously apply its mind before passing the order of pre-arrest bail. I must, however, make it clear that Courts are the guardians of liberty of citizens. The abuse of power by the police to rope in innocent persons in order to humiliate them and to cause irreparable loss to their reputation should be equally kept in view. The golden principles in Hidyat Ullah Khan's case must strictly be followed."

In 1983 S C 82, Supreme Court noted some earlier cases decide by it on the point and observed that it has been reiterated therein that the condition of arrest being for ulterior motives, for example that of humiliation and unjustified harassment is a necessary condition for pre-arrest bail. Their Lordships after taking note of few more cases further observed at page 85 of the report. 'The foregoing resume of the case-law since 1949 and the recent trend of authority would show that notwithstanding varied facts, this Court always thought it necessary to look for such circumstances which would furnish the assumption that the police was motivated on political considerations or other ulterior reasons, before granting pre-arrest bail'.

Similar view has been expressed by the Supreme Court in Ziaul Hassan v. The State P L D 1984 S C 192. It is held in that case 'the Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts from time to time are satisfied, the most essential of them all being that the intended arrest would be tainted with mala fides which must be specifically stated. It is in this context also that the other condition of irreparable loss is to be viewed'. In that very case, while dealing with the contention that the question of the recovery was not a valid ground for cancellation of pre-arrest bail, their Lordships observed, 'the possible recovery of stolen or misappropriated articles or articles used in the commission of the crime amongst other types of recovery, can be a good ground for cancellation of bail. There is no bar of propriety or law in this behalf. In this behalf it is the duty, amongst others, of the Court granting, pre-arrest bail to examine the question whether such an action would not frustrate the investigation vis-a-vis various factors including the relevant recovery. If the order granting pre-arrest bail by the trial Court is silent about it, the presumption would be that it was not conscious about the same'.

8. Viewed in the light of the foregoing discussion, I do not consider it a fit case for the grant of pre-arrest bail. Petitioners are named in the F.I.R. with a definite role attributed to them. Mere fact that there was a previous enmity between the parties does not bring the petitioners' case within the rule laid down by the superior Courts justifying the grant of pre-arrest bail. It is significant that there is no allegation against the police that it had any malice or motive against the petitioners. That being so, I am not satisfied on the present record that the petitioners are intended to be arrested for any ulterior motives. I also find considerable force in the submission of the learned counsel for the State and the complainant that the hatchets allegedly used by the petitioners have yet to be recovered from them.

9. In view of what has been stated above, interim bail granted to the petitioners is not confirmed and the present petition stands dismissed. It is, however, made clear that anything said in this order shall not stand in the way of the Courts below to consider the question of bail after arrest which of course, stands on a different footing. In fact, I have purposely not examined the merits of the case canvassed by the learned counsel for the petitioners lest it may prejudice either party in any fresh application which the petitioners may move.

S. A. Petition dismissed.

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