NAZEER AHMED vs ABDUL RASHID CHATHA and another
This criminal miscellaneous petition seeks the cancellation of pre-arrest bail granted to Respondent No. 1 by the Additional Sessions Judge in a case registered under Sections 302, 324, 109, and 34 of the Pakistan Penal Code 1860, relating to murder and abetment. The petitioner contended that the respondent was specifically nominated in the FIR for instigation, that co-accused were absconding, and that the principles governing pre-arrest bail were ignored. The respondent argued that he was not present at the occurrence and was falsely implicated. The Lahore High Court held that pre-arrest bail is an extraordinary remedy requiring a showing of mala fides or ulterior motive on the part of the prosecution or police, which was absent in this case. The Court emphasized that where a prima facie case is made out and no unjustified harassment or mala fides is established, pre-arrest bail cannot be granted. Consequently, the High Court set aside the lower court order and cancelled the pre-arrest bail granted to the respondent.
- Can pre-arrest bail be granted in the absence of any allegation of mala fides or ulterior motive against the investigating agency?
- Whether the extraordinary relief of pre-arrest bail can be sustained when a prima facie case is made out against the accused?
- Is an accused nominated for abetment and conspiracy entitled to pre-arrest bail without establishing unjustified harassment or false implication?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
Through this criminal miscellaneous the petitioner seeks cancellation of pre-arrest bail of Respondent No. 1 granted by the learned Additional Sessions Judge vide his order dated 27.2.2004 in case FIR No. 23 dated 8.2.2004 registered under Sections 302, 324, 109, 34 PPC at Police Station Mandra on the allegation that Yasir son of the petitioner was murdered by accused named in the FIR on the instigation of Respondent No. 1.
2. Learned counsel for the petitioner contends that Respondent No. 1 was specifically nominated in the FIR; that the learned trial Court has taken the offence of abetment in a very light manner and that co-accused Muhammad Zareed son of the respondent and Nasir nephew of the respondent are still absconding. He further contends that the learned Additional Sessions Judge did not consider the principle of grant of pre-arrest bail as laid down by Hon'ble Supreme Court of Pakistan in cases of Malik Zafar Abbas vs. Agha Raza Abbas Qazilbash and another (PLD 2002 SC 529), Mst.
Hanifan Bibi and another vs. Zulfiqar and another (PLD 2001 Lahore 123) and Zia-ul-Hassan v. State (PLD 1984 S.C. 192).
3. On the other hand, Jearned counsel for the respondent in opposition, contends that the respondent was not present at the time of alleged occurrence; no role has been attributed to him.
The only role attributed to the respondent in the FIR is that at his instance the accused have committed the murder of Yasir Mahmood; the ,alleged evidence of conspiracy did not find mention in the FIR; that the respondent is an old man and is being falsely implicated in the case. He placed reliance on Arshad vs. The State (1999 P.Cr.L.J. 611) and Manzoor Ahmad and another vs. State (PLJ 1997 Cr.C. (Lahore) 884. Learned counsel appearing for the State supported the petition and submitted that Respondent No. 1 was not entitled to grant of pre-arrest bail.
4. I have considered the respective submissions of the learned counsel for the parties and perused the record.
5. Yasir Manmood was murdered while Faisal Mahmood and Mst. Farzana Bibi received injuries on their persons at the hands of Muhammad Zareed, Nasir, Qadeer and Faisal armed with rifles.
Respondent No. 1 is stated to have abetted the commission of offence. Fazal Karim and Akhtar Mahmood got recorded their statements under Section 161 Cr.P.C. implicating Respondent No. 1 of hatching a conspiracy to do away with Yasir Mahmood and Faisal Mahmood.
6. Grant of pre-arrest bail is an extraordinary relief which is not granted in routine. The investigation is neither to be frustrated nor blocked by grant of pre-arrest bail. It is granted in cases of intended arrest for any malafide purpose of ulterior motive at the hands of the police. There is no allegation whatsoever against the investigating agency to effect the arrest of the respondent for any mala fide purpose. Hon'ble Supreme Court in case of Zia-ul-Hassan vs. State (PLD 1984 S.C. 192) has observed as under: "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 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."
The Hon'ble Supreme Court once again in the case of Malik Zafar Abbas (supra) while reiterating the view expressed earlier in a number of cases observed that in the absence of any element of unjustified harassm ent, false implication or ulterior motive either on part of prosecution or adversaries concerned, mala fides of intended arrest to insult or disgrace, the question of grant of pre-arrest bail does not arises. A prima facie case was made out against the respondent. The respondent was not entitled to concession of pre-arrest bail. His real son and nephew are still absconding.
7. In view of the above discussion, the order granting bail to the respondent is not sustainable in law. Pre-arrest bail granted to respondent is cancelled. The observation made above are only tentative in nature and meant for the disposal of instant petition against grant of pre-arrest bail.