' ATTAULLAH KHAN, J.---Through this application filed under section 497(5), Cr.P.C. The petitioner Haji Muhammad Zaman, seeks the cancellation of pre-arrest to the accused/respondent Jehan Khan by the learned Sessions Judge Tank vide order dated 20-5-2010 in case F.I.R. No,485 dated 5- 9-2009 of Police Station Tank registered under section 302/34, P.P.C.
2. According to the First Information Report lodged by the complainant/petitioner Haji Muhammad Zaman, on the fateful day at about 0530 hours, he along with his nephew named Gul Nawaz, son of Sher Khan and other co-villagers were busy in offering `Aser Prayers' in the village Mosque when in the meanwhile accused Jehan Khan, his son Daulat Khan and nephew Farman duly armed with Kalashnikovs entered the Mosque and started firing at his nephew Gul Nawaz with which he was hit, seriously injured and died on the spot. The motive for the offence was stated to be dispute over blockade of drain water.
3. After the occurrence, all the accused decamped from the spot. Subsequently, on 26-4-2010, accused/respondent Jehan Khan, applied for bail before-arrest which was granted at the first instance and, thereafter, confirmed by the learned Sessions Judge Tank vide impugned order dated 20-5-2010. Hence this application.
4. Learned counsel for the petitioner argued that the accused/respondent has remained fugitive from law for a considerable long and unexplained period of more than eight months. There is no motive for false implication and that no mala fide has been proved, therefore, the learned Sessions Judge Tank was wrong in confirming the pre-arrest bail.
5. On the contrary, learned counsel for the accused/respondent argued that the accused/respondent has been declared innocent by the Investigating Officer; that the Imam Masjid and others have negated the prosecution version involving the accused/respondent in the offence and, therefore, the impugned order does not warrant interference by this court. He urged that principles for cancellation of bail and grant thereof are different from each other. According to him, the only plea to be considered for cancellation of bail is the misuse of concession of bail or tampering with the evidence which is lacking in the case in hand and, therefore, the impugned order being based on correct legal footings needs no interference. In support of his submissions, reliance was placed on the case-law reported in 2010 YLR 670.
6. I have carefully examined record of the case and anxiously considered the valuable arguments of the learned counsel for the parties.
7. Perusal of the record reveals that the accused/respondent along with others are charged for the murder of Gul Nawaz, who is nephew of the complainant. The facts of the case-law referred to above are totally different from the facts of the case in hand, because in the cited judgment, the court was moved for cancellation of post-arrest bail, while here the instant application is filed for cancellation of pre-arrest bail. Likewise, the principles for pre-arrest and post-arrest bail are also quite different. In pre-arrest bail petitions, mala fide, false involvement and malicious prosecution are to be considered. The grant of pre-arrest bail is limited only to the circumstances enumerated above. In this respect reference may be made to 1996 SCM R 71.
8. In the circumstances, we have to see whether in the case in hand the ingredients necessary for grant of pre-arrest bail were available which prompted the Sessions Judge Tank to confirm the same.
9. The impugned order is dated 20-5-2010. Its perusal reveals that the following points have prevailed with the learned Sessions Judge for the confirmation of bail before-arrest:--
(a) Only one empty was recovered;
(b) Statement of Imam Masjid;
(c) Opinion of Investigating Officer;
(d) No bullet mark was found near the wall;
(e) Old age of the accused and
(f) The medical report.
10. If the above reasons are considered, one would reach to the conclusion that these are the grounds to be taken into consideration for grant of post-arrest bail and not during bail before- arrest. The above reasons do not include mala fide on the part of complainant or police, false involvement and humiliation of the accused and, therefore, the impugned order is liable to be set aside.
11. The tentative assessm ent of the materials so far brought, prima facie, connect the accused/respondent with the commission of the offence which falls within the prohibitory clause of section 497, Cr.P.C.
12. Consequently, I accept this application and cancel the pre-arrest to the accused/respondent through the impugned order by the learned Sessions Judge, Tank. He is present, taken into custody and sent to jail. He is, however, at liberty to move afresh the competent court for post-arrest bail.