MEHR-UN-NISA vs STATE & 3 others

ORDER

This is an application for cancellation of bail before arrest granted to Respondents No, 2 to 4 by the learned Additional Sessions Judge-I, 'Peshawar through a common judgment dated 23.05.2012 in case FIR No, 300 dated 28.04.2012 under Section 380/452, PPC read with Section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, Police Station Gulbahar, Peshawar.

2. Arguments heard and available record perused.

3. Case against Respondents No, 2 to 4 was registered after acceptance of Section 22-A, Cr.P.C. petition of complainant by the learned ASJ, Peshawar with the allegation that she is, owner of disputed house on the basis of dower and a few months back, accused Respondents No, 2 and 3 sold out the entire house to Respondent No, 3; that while breaking locks of the room, the entire luggage belonging to her was also moved away in her absence as she herself resides in Hayatabad. The learned ASJ confirmed the ad-interim pre-arrest bail granted to Accused/respondents on the grounds that complainant has not given the exact date of occurrence; that as per accused/Respondents No, 2 and 3, complainant had already sold out her share in the disputed house to one Aurangzeb as back as in the year 2003 and Accused/ Respondent No, 3 was a bonafide purchaser of the house. In the circumstances, learned counsel for petitioner though argued the case at some length but could not point out any deviation on part of the trial Court from the settled law for grant of bail in such like cases, which clearly was indicative of the fact that case against respondents was that of further inquiry under sub-section

(2) of Section 497, Cr.P.C. and the Sections of law with which accused/respondents were charged also did not fall within the prohibitory clause of Section 497, Cr.P.C.

4. The law for grant and refusal of pre-arrest bail laid down in Hidayat Ullah Khan v. State, PLD 1949 Lah.

21. Murad Khan v, Fazal-e-Suban, PLD 1983 SC 82, Muhammad Safdar Khan v. State, 1983 SCMR 645 and Jamaluddin v. State, 1985 SCMR 1949 that there must be element of ulterior motive, mala fide intention harassm ent and victimization both on the part of complainant and the police, had been relaxed by a Full Bench of the Apex Court in Meeran Bux v. State, PLD 1989 SC 347 where the order of the High Court canceling pre-arrest bail granted to accused was set aside by the Supreme Court on the ground that the gunshot injury on the leg of the deceased was neither fatal nor caused on the vital part of the body and was declared to be simple. In this case, the Apex Court had widened the scope for the grant of pre-arrest bail and set the trend for the Courts to consider cases on merits, besides element of mala fide etc. The Apex Court in Syed Muhammad Firdaus v.

State, 2005 SCMR 784 has reiterated the law for the grant of bail before arrest in the following terms:-- "Be that as it may, now it would be imperative to examine as to whether for grant of bail before arrest to the petitioners, principle laid down in the case of Sadiq Ali v. State; PLD. 1966 SC 589 would be attracted or not, according to which "exercise of this power should, however, be confined to cases in which not only a good, prima facie, ground is made out for grant of bail in respect of an offence alleged but also it should be shown that if the petitioners were to be arrested and refused bail, such an order would, in all probabilities, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motives and with the object of injuring the petitioner, or that the petitioner would in such an eventually suffer an irreparable harm. This principle has been reiterated in the case of Meeran Bux v. State; PLD 1989 SC 347. In this behalf it may be noted that in this case bail before arrest granted to an accused by the Sessions Judge was cancelled by the High Court in suo motu revisional jurisdiction on the premises that pre-requisite for bail before arrest i,e, ulterior motive was not satisfactorily proved but this Court restored the order of Sessions Judge, taking into consideration that the accused remained on bail for a period of more than one year before cancellation of his bail and he did not abuse the concession in any manner. Reference in this behalf was also made to the case of Murad Khan v. Fazal-e-Subhan; PLD 1983 SC 82. Similarly in the case of Jamal-ud-Din u. State; 1985 SCMR 1949, this Court had. laid down that "arrest for ulterior motives such as humiliation and unjustified harassment makes it valid consideration for grant of pre-arrest bail. This very principle has been reiterated in the case of Ajmal Khan v. Liaqat Hayat; PLD 1998 SC 97."

5. Thus finding no merit in this petition, it is hereby dismissed In limine.