1. ' Accused/applicant apprehends his arrest in case F.I.R. No,62 of 2002 under sections 147/148/149/186/504/506, P.P.C. And 82 of Peoples Representative Act, 1976 registered on 15-10-2002 on the report of Muhammad Akbar, A.D.A.O. Dobandi Chaman to the effect that on 11-10-2002 at about 11-00 a.m. The candidates of NA-262, PB-12 and PB-13 along with their armed supporters came to the Office of D.C.O./D.R.O. Killa Abdullah with demand to announce the election results.
2. D.R.O. Killa Abdullah declared the elections of the above constituency invalid and announced re- election on which Sarwar Pir Alizai and Bismillah Khan Kakar along with their supporters got provoked and attacked R.Os. NA-262, PB-12 Civil Judge, Syed Abdul Qadir Shah and PB-13 Killa Abdullah Muhammad Akbar, they were abused and threatened for dire consequences. The incident was witnessed by commandant Pishin Scouts Col. Muhammad Sarwar Major Shaukat, D.A.O. Killa Abdullah Muhammad Naseem Lehri, D.S.P. Chaman Zahid Afaq and others Government officials.
3. ' During investigation of the case statement of D.S.P. Chaman Zahid Afaq was recorded on 15-10- 2002, Abdul Qadir Shah Civil Judge, Killa Abdullah was examined on 23-10-2002, Major Shaukat and Naseem Lehri D.C.O. Killa Abdullah got recorded their statement on 28-10-2002. Warrant of arrest of nominated accused were obtained but to no effect, however, in case F.I.R. No,6 of 2002 under section 302/34, P.P.C. Malik Muhammad Younus and Zamrak Khan were arrested on 19-11-2002.
4. Zamrak Khan was identified by complainant Muhammad Akber A.D.A.O. And Ghulam Qadir Shah, Civil Judge, Chaman to be one of the companions of accused applicant Bismillah Khan Kakar and Sarwar Pir Alizai.
5. ' On 21-11-2002 accused/applicant approached this Court for grant of protective bail enabling him to approach Sessions Judge, Pishin, which was allowed. Accused applicant thereafter made application to Sessions Judge, Pishin for grant of pre-arrest bail which was refused vide order, dated 23-11-2002 whereupon this application for pre-arrest bail has been filed.
6. ' Mr. Noor Muhammad Achakzai the learned counsel for the petitioner labeled the action of A.D.A.O.
7. Muhammad Akbar as mala fide and because of ulterior motive. It was contended that regarding improper attitude of Muhammad Akbar A.D.A.O. Complaint was made to high ups as well as Election Commission, in said connection a joint press conference was also addressed by the candidates of PB-12 and PB-13 on 14-10-2002 which annoyed the A.D.A.O. Who lodged the complaint as a counterblast to cover his shortcomings. It was further argued that the F.I.R. Has been lodged with delay of 5 days and the witnesses have also been examined after considerable delay for which no explanation is available. It was lastly contended that the alleged offences are bailable entitling accused applicant for grant of bail.
8. ' On the other hand Mr. Sultan Mehmood the learned A.A.-G. Controverting the arguments of the learned counsel for accused applicant contended that accused/applicant is nominated in the F.I.R., whereas; the delay in lodging of the F.I.R. Is explained by the circumstances. The complainant was Returning Officer and pre-occupied in election duties which were to be given priority. Further the officer/officials present at the spot at the time of incident have supported the allegations made in the F.I.R. No ulterior motive on their part exist whereas; the allegation of ulterior motive and mala fide against complainant also remained unspecified hence mere allegation without any basis cannot be taken into consideration. Accused/applicant remained, absconder and avoided his arrest whereas he is prima faciely connected with the commission of offences including offence under section 82 of Peoples Representative Act, 1976 which after amendment as per section 82-A is punishable for term extending to 5 years with minimum sentence of 3 years.
9. ' The submissions made by the learned counsel for the parties considered and record of the case examined. The F.I.R. Referred hereinabove reflects that the complainant who was Returning Officer, PB-13 along with Returning Officer for NA-262 and PB-12 were attacked and abused as the Election Commission declared the election of the above constituencies as invalid and re-election was ordered.
10. ' Accused/applicant and one of the other candidate Sarwar Pir Alizai were nominated, and they were stated to be accompanied by their armed supporters who attacked the R.Os. The allegations made in the F.I.R. Are supported by the officers, who were present at the spot at the time of incident.
11. ' Zahid Afaq; D.S.P., Chaman while giving the details of the incident, nominated accused applicant and Sarwar Pir Alizai and mentioned the number of the supporters of accused/applicant about
250. Statements to same effect were made by Abdul Qadir Shah, Civil Judge, Major Shukat and Naseem Lehri, D.C.O.
12. ' The record reflects that another case under F.I.R. No,6 of 2002 under section 302, P.P.C. Was registered at Levies Thana Jungle Pir Alizai regarding Qatal of a lady election agent, in the said case two of the nominated accused namely Malik Muhammad Yunas and Zamrak Khan were arrested. Zamrak Khan was identified to be one of the supporters of accused/applicant, who was present with him at the time of incident reported vide F.I.R. No,62 of 2002.
13. ' There is no dispute regarding the fact that the Election Commission declared the elections of the above referred constituencies as invalid and ordered re-election. Accused applicant and co- accused Sarwar Pir Alizai were aggrieved by the said decision, therefore, there was cause for their grievance, whereas; the record does not show that either the complainant or any of the other witness named hereinabove had any reason or motive to falsely implicate accused/applicant or the co-accused in the commission of offence. The only grievance against accused/applicant and the co-accused reflected from the record is the incident itself regarding which the F.I.R. Was lodged. The contention of accused/applicant that they had made complaint regarding attitude of Muhammad Akbar A.D.A.O. To the Election Commission, does not find neither any support from the record nor any such material was produced by accused/applicant. The submissions made by accused applicant reflect that prior. To the invalidation of election he had no grievance against complainant and the dispute arose only after the election was declared invalid which could not be any cause of grievance on the part of complainant or other officers who are witnesses in the instant case. Accused applicant failed to state any other dispute between the parties on account of which the complainant or the witnesses can be said to have C any motive against accused applicant for his false implication in the case.
14. ' No doubt the offences under sections 147/48/149/186/353/ 504/506, P.P.C. Are punishable with imprisonment not exceeding three years but the allegations and the evidence available on record prima faciely attracts commission of offence under section 82-A(a) of the Representation of Peoples Act, 1976, which reads as under:-- "(a) seizes a polling station or a place fixed for the poll or makes polling authorities surrender the ballot-papers or ballot box or both and doing of any other act which affects the orderly conduct of elections."
15. ' Complainant and the Civil Judge, Chaman being R.Os. Were responsible for conducting orderly elections as per directions of Election Commission. For certain reasons which need not to be explained here, the Election Commission declared the election of the above referred constituencies as invalid and ordered for re-election, the allegation against accused applicant is that he per force demanded announcement of the election result which the Election Commission declared invalid, therefore, his said act prima faciely amounts to interference in the orderly conduct of election.
16. ' The above offence is punishable with imprisonment for a term which shall not be less than 3 years and may extend to 5 years with fine which shall not be less than Rs,50,000 and may extend to Rs,1,00,000.
17. ' The criteria for grant of pre-arrest bail is not similar to the grant of bail after arrest. Honourable Supreme Court in case Murad Khan v. Fazl-e-Subhan and others PLD 1983 SC 82 has laid down the principles which are to be strictly followed for grant of pre-arrest bail. In the instant case the grounds for grant of anticipatory bail as laid down by Honourable Supreme Court is not available, therefore, I am unable to find any reason for extending the concession of anticipatory bail to accused/applicant because no ulterior motive on the part of complainant or other officers whom accused applicant allegedly attacked and abused, is reflected from the circumstances discussed hereinabove. I feel to observe that after registration of the case on 15-10-2002 till 30-10-2002 no step whatsoever was taken for arrest of accused/applicant and he also did not apprehend his arrest, therefore, if there had been any ulterior motive on the part of complainant or other officers, efforts would have been made to arrest accused/applicant, which reflects the lack of interest on the part of complainant and other officers who were also victim of the incident, therefore, in my opinion accused applicant failed to make out a case of grant of anticipatory bail. Application is accordingly rejected.
18. Application rejected.