The petitioner seeks bail before arrest in a case under Section 155 of the Police Order, 2002, registered vide F.I.R. No. 350 dated 26.10.2006, at Police Station Kot Mubarak, District Dera Ghazi Khan. As the F.I.R. had been registered under the orders of the learned Sessions Judge, D.G. Khan, the petitioner directly approached this Court for grant of pre-arrest bail which was entertained in view of a judgment of the Hon'ble Supreme Court which has been reported as "Riaz Wazir Khan vs. The State" (2004 SCM R 1167).
2. Briefly the allegation as contained in the above mentioned F.I.R. which was registered on the complaint of the learned Sessions Judge, D.G. Khan, is that the petitioner who is S.I./I.O failed to arrest Sher Bahadar accused who was involved in a case registered under Sections 365/148/149 PPC, vide F.I.R. No. 217/06, at Police Station Kot Mubarak, District D.G. Khan.
3. Learned counsel for the petitioner has 'contended that the offence under. Article 155 of the Police Order, 2002, was not attracted to the facts of the present case as according to the F.I.R. the said accused Sher Bahadar had applied for bail before arrest on the same day when the order for registration of case was passed by the complainant. He has further contended that firstly the investigation was being conducted by Imtiaz Ahmad S.I. and then the investigation of the said case was entrusted to him on 16.8.2006. He adds that offence with which the petitioner has been charged does not fall within the prohibitory clause. Further contends that out of five accused nominated in the said F.I.R. Bearing No. 217/2006, one accused namely Qasim was arrested by the previous I.O. while Ghulam Farid accused was .arrested by the petitioner on 25.9.2006. He further maintains that the petitioner being a Government Servant, there is no likelihood of his abscondence. The jurisdiction of the complainant to pass order for registration of the case has also been challenged by placing reliance upon Article 35 of the Police Order, 2002, according to which District Nazim is competent to issue such like direction.
4. Learned counsel for the State has opposed the bail application.
5. After hearing the learned counsel for both the parties, it has been found that Sher Bahadar accused had admittedly surrendered before the Court of competent jurisdiction by filing application for pre-arrest bail. The offence under Article 155 of the Police Order, 2002, is punishable with three years. The petitioner being a Government Servant is not likely to abscond and the case requires further inquiry as to whether he deliberately failed to arrest said accused or not. Without commenting upon the question of jurisdiction of the complainant, I, feel that the petitioner has made out a case for grant of pre-arrest bail.
6. As far as, the question of mala fide is concerned, it is observed that if on merits the accused succeeds to make out his case for pre-arrest bail, absence of mala fide or ulterior motive on the part of the police would not debar him from the concession of said bail. Reliance in this regard is placed upon the case of "Meeran Bux vs. The State and another" (PLD 1989 SC 347) and "Muhammad Ismail vs. Ghous Bux and another" (1990 P.Cr.L.J. 2013).
7. In view of the above, ad-interim pre-arrest bail already allowed to the petitioner vide order dated 10.11.2006 is hereby confirmed provided he furnishes fresh bail bonds in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the Deputy Registrar (Judi) of this Court.