MURAD KHAN vs FAZALESUBHAN AND ANOTHER

1. ' MUHAMMAD APZAL ZULLAH, J.-This appeal through leave of this Court is directed against the order of the Peshawar High Court dated 18-11-1981 ; whereby the respondent was allowed anticipatory bail in a case of attempt to commit murder (under section 307, P. P. C.) A learned Single Judge in the High Court after noticing that the Sessions Court had refused pre-arrest bail to respondent Fazal-e-Subhan, himself examined the merits of the question whether the allegedly fire-arm wound on the person of the complainant was at all caused Ly a fire-arm, further observed that it required inquiry to see whether the complainant could have suffered the fire-arm injuries in the manner asserted from the prosecution side. Accordingly without going into the other questions regarding the essential conditions for grant of pre-arrest bail, the same was granted only on the satisfaction of one of the conditions regarding merits. It may be mentioned here that although there are three other accused who are allegedly involved in the case by application of section 34, P. P. C., the complainant had filed the petition for grant of leave to appeal only against Fazal-e- Subhan respondent who is alleged to have fired the shot. Leave was granted to consider whether the learned Judge in the High Court acted in accordance with the "well-established principles relating to grant of pre-arrest bail".

2. ' As would be presently shown, it is not necessary to examine the merits of the case for grant of bail because it might prejudice either party in fresh application, one of the principles which has often been emphasised by this Court as a pre-condition for grant of anticipatory bail is that "it is not the rule in criminal cases and in order to justify the grant of such (anticipatory) bail the petitioner must show that he apprehends his arrest on account of ulterior motive This being the reiteration in All Muhammad v. Yamin and another , it may be observed here that addition of section 498-A, Cr. P.

3. C. By an amendment in 1976 has not changed the afore noted position. The principle for grant of anticipatory bail remains the same. In the precedent case, it was held that the said condition was not satisfied accordingly the anticipatory by the High Court was cancelled by this Court. On the other hand in Ch. Zahur Ilahi v. The State there being a serious "question of mala fide to harass him because he belonged to the opposition group in the National Assembly", this Court after making the reference to the well-known cases of The Crown v. Khushi Muhammad and Sadiq Ali v. The State , examined the merits and allowed bail which had earlier been refused by the High Court. In an earlier Lahore case, Sh. Zahoor Ahmad v. The State one of us (as a Judge of the High Court) considered the scope of last mentioned two rulings in the cases of Khushi Muhammad and Sadiq Ali, and also examined the rules laid down in the Full Bench case of Hidayat Ullah Khan v. The Crown , and case of Muhammad Ayyub v. Muhammad' Yaqub . In para. 10 of the judgment in the case of Sh. Zahoor Ahmad, five conditions were noted as deducible from the precedent law. One of the conditions was that "on account of ulterior motives particularly on the part of the police, there should be apprehension of harassm ent and undue irreparable humiliation by means of unjustified arrest." This condition having been satisfied, in the said case also the High Court allowed the bail. In a recent Full Bench's decision of Lahore High Court in Shabbir Ahmad v. The State again after making reference to the cases of Hidayat Ullah Khan, Khushi Muhammad and Sadiq All, it was observed that :- "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 has 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 Hidayat Ullah Khan's case must strictly be followed."

4. As already observed, it has been reiterated by this Court in earlier noted cases that the condition of arrest being for ulterior motives, for example, that of humiliation and unjustified harrassment is a necessary condition for pre-arrest bail. It would not be out of place to notice another case Rao Qadeer Khan v. The State , wherein indiscriminate grant of anticipatory bail was commented upon as follows: "We are also in agreement with the learned Courts below that the conduct of the petitioner by making repeated applications for anticipatory bail, trying to gain advantage thereunder and then absenting for periods of time, amounted to abuse of the process of law and Court."

5. ' It has not been denied that there are other cases as well confirming the rule that one of the main considerations for grant of bail is whether the prosecution is motivated by malice so as to cause irreparable injury to a citizen's reputation and liberty. It is not necessary to notice all of them in this case but it would be of some practicable advantage to take note of few cases in addition to the ones already mentioned where the condition in question was kept in mind. They are Muhammad Shafiq and another v. The State , Muhammad Azam and another v. The State and Sardar Muhammad and others v. The State . In the case of Muhammad Shafiq although ground of mala fide on the part of the complainant in the case was asserted, this Court after examining the allegations and the nature of injuries involved in the case, observed that the High Court was right in saying that law should take its normal course and there was no justification for allowing pre-arrest bail." In the case of Muhammad Azam wherein this Court accepted an appeal, one of the1 2 3 4 5 6 7 8 9 10 11 12 allegations was that the accused were the victims of departmental intrigues and jealousies and the intended arrest was to harass and ridicule the accused with an ulterior motive to disgrace them through' the process of being handcuffed". In the case of Sardar Muhammad also this Court allowed anticipatory bail even in a hurt case, where the allegation was that the accused were implicated out of malice because they were the office-bearers of the Pakistan National Alliance. It was further suggested that the accused was being victimized by the Government then in power, on account of they being the office-bearers of the opposition party and that the purpose of arrest was victimization and humiliation.

6. 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 C assumption that the police was motivated on political considerations or other ulterior reasons, before granting pre-arrest bail.

7. ' In this case, with respect, it is pointed out that the learned Judge in the High Court failed to notice the principles discussed above. Learned counsel for the respondent remained unable to satisfy us with regard to the condition D of mala fide of the intended arrest. It was, therefore, not a fit case for grant of anticipatory bail, though after arrest the petitioner would have been at liberty to urge the point on the basis of which the impugned order was passed.

8. ' We accordingly set aside the impugned order and allow this appeal with the direction that the respondent shall surrender to the proper custody. 1981 SCMR 1139 1981 SCMR 935 PLD 1953 FC 170 PLD 1966 SC 589 PLD 1974 Lah. 256 PLD 1949 Lab. 21 PLD 1966 SC 1003 PLD 1981 Lab. 599 PLD 1981 SC 93 1982 SCMR 384 1980 SCMR. 269 1977 SCMR 326