Petitioners Abdul Majeed and Kaloo have moved this petition for grant of pre-arrest bail in case F.I.R No, 201 dated 02.05.2010 registered under Section 365-B, P.P.C. at Police Station Sarwar Shaheed Kot Addu District Muzaffargarh under the allegation leveled by Wahid Bukhsh that about 2(1/2) months back his wife Mst. Kaneez went to get potable water from a nearby water pump and he followed her, subsequently and found that Saeed Ahmad alias Sheeda son of Ghulam Yasin, Abdul Majeed and Kaloo alongwith two unknown persons were abducting Mst. Kaneez while forcibly placing her in a vehicle. On hue and cry of the complainant witnesses reached at the spot.
The complainant approached the accused for the return of his wife and after about one month she came back, thereafter he lodged the FIR.
2. Learned counsel for the petitioners contends that the allegations against the petitioners are false, as they have not committed any offence; that if the contents of FIR are seen there is nothing mentioned except the allegation that the petitioners associated their co-accused Saeed Ahmad for the abduction of the said lady. No other allegation is leveled against them, even otherwise, alleged abductee reached back to her husband prior to lodging the FIR; that there is delay in lodging the FIR which itself makes the case of petitioners One of further inquiry; that the petitioners have joined the investigation and they are no more required by the police for further investigation purposes, nor any recovery is to be effected. Prayed that ad interim pre-arrest bail already granted to the petitioners be confirmed.
3. On the other hand, learned DDPP assisted by learned counsel for the complainant has opposed this petition on the grounds that prima facie offence under Section 365-B PPC is made out against both the petitioners as they are specifically assigned the role of abduction of the wife of complainant and there is no mala fide on the part of police and complainant, therefore, prayed that this petition be dismissed.
4. I have heard the learned counsel for the parties and perused the record.
5. The story narrated in the FIR itself shows that alleged abductee came back to the complainant after one month although it is agitated on behalf of complainant by learned counsel that delay in lodging the FIR is explained as FIR was registered with the intervention of learned Justice of Peace as a result of application under Section 22-A, Cr.P.C. however fact remains that the alleged abductee herself came back and except the role, above mentioned, there is no other allegation leveled against the petitioners like their co-accused Saeed Ahmad who was alleged sexual access to that lady. The case of petitioners is distinguishable from their co-accused. Even otherwise the case of the petitioners is that of further probe and falls under sub-section (2) of Section 497, Cr.P.C.
Although it is agitated by the learned counsel for the complainant that pre-condition for the grant of pre-arrest bail i,e, mala fide or ulterior motive on the part of the complainant or police are not proved on record by the petitioner and it was prayed that petitioner is not entitled for concession of this extra ordinary remedy. Ulterior motive and mala fide on the part of the complainant or police normally cannot be proved or made out at the bail stage but the facts & circumstances of each criminal case if prima-facie create a doubt and a petitioner is able to make out or point out any such circumstance this can be considered as a ground for grant of pre-arrest bail. A famous judgment passed by the Hon'ble Supreme Court of Pakistan on this subject i,e, PLD 1983 SC 82 (Murad Khan Vs. Fazal-e-Subhan and another) if seen their Lordships while passing that judgment have thrashed all these aspects while referring the judgment PLD 1949 Lah. 21 (Hidayat Ullah Khan v. The Crown) and Khushi Muhammad's case (PLD 1953 FC 170) observed as under: "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 apparently 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."
6. No doubt while granting pre-arrest bail a Court should observe a balance approach while on one side it should not cause any uncalled for interference into the progress of the investigation and on the other side it should take care of the rights guaranteed to a citizen under Constitution like liberty as nobody should be deprived of his liberty without due process of law. If an accused person is involved in a criminal case due to none of his fault, just with the aid and assistance of police under the influence of complainant due to ulterior 'motive and mala fide, it is very difficult to refute such allegations or to disprove the same during the investigation process. The investigation process in this Country is although governed under Police Order, 2002 read with Police Rules as well as provisions provided under Code of Criminal Procedure but on ground situation is all-together different. A respectable person even a complainant does not in normal circumstances wish to visit a Police Station at the cost of his/her humiliation due to the conduct of police and the environment in the Police Stations. It is very easy to level an allegation of commission of a crime but it is very difficult to rebut the same and specially at the initial stage of the investigation when normally a person comes to a Court of law for his rescue under the fear of his imminent arrest by the police and ultimately to avoid to face the humiliation by the hands of the police. It is only the circumstances by which one can prove and agitate before a Court of law the mala fide. In Murad Khan's case supra their Lordships of the Hon'ble Supreme Court of Pakistan while referring the leading judgment on the subject came to the conclusion that if ulterior motive and mala fide are proved then pre-arrest bail be allowed to a person. To my mind if the above mentioned judgment is seen their Lordships have provided the guidelines to keep the scale in balance between the complainant, police and an accused at the time of deciding the pre-arrest bail application by a Court of law, so that on the one side investigation may not be hampered and on the other side if an innocent persons is being involved in criminal case due to ulterior motives or with mala fide he be saved from undue harassm ent and humiliation but unfortunately, that judgment till today was being used to curtail the powers of the Courts provided under Section 497/498 Cr.P.C., whereby the Sessions Courts as well as High Courts were equipped with the power to shelter the people from uncalled for allegations leveled against them due to ulterior motives and mala fide. The author of the famous judgment on the subject i,e, PLD 1995 SC 34 (Tariq Bashir and 5 others v. The State)
Hon'ble Mr. Justice Muhammad Munir Khan, J (as he then was) in another judgment reported as (Haji Ghani Vs. The State) PLD 1988 Lahore 507 dealt all these aspects for the grant of pre-arrest bail and while dealing at Page 509 of the judgment in Para 4 it was observed as under:-- "Doubtless in criminal cases including offences not falling in prohibitory clause of Section 497, Cr.P.C. grant of pre-arrest bail to an accused is not a rule but an exception. In this regard the Superior Courts have imposed five restrictions from time to time and important of them all being that not only prima-facie good grounds for bail should be made out but also it should be shown that intended arrest of the petitioner/accused is tainted with ulterior motives to humiliate and harass him. So keeping in mind the pre-conditions for grant of anticipatory bail laid down in cases reported as PLD 1949 Lah. 21, PLD 1953 FC 120, PLD 1966 SC 589, PLD 1974 Lah. 256, 1977 SCMR 326, 1980 SCMR 269, 1981 SCMR 935 and 1139, PLD 1981 Lah. 599, PLD 1981 SC 93, 1982 SCMR 384, PLD 1983 SC 82 and PLD 1984 SC 192, and simultaneously keeping in view that Courts are guardian of the liberty and honour of the citizen against high-handedness of police and other agencies, I have considered the arguments of the learned counsel for the parties with care. I feel that since the facts of the two criminal cases seldom coincide, therefore, the restrictions laid down by the Superior Courts in the matter of pre-arrest bail are not intended to be rigidly adhered to in each and every case. So grant or refusal of bail primarily depends upon the facts and circumstances of each case."
7. In the subsequent Para No, 5 while dealing with the same subject his lordship was pleased to further observe as under:-- "I will like to make it clear that there is no legal compulsion on the Courts to refuse the concession of pre-arrest bail or post-arrest bail on the sole ground of "possible recovery" although it may be one of the considerations for the rejection of the bail in a proper case. The petitioner is willing to produce Bonds valuing Rs, 14,45,000 which were purchased by him at Stock Exchange and also assures to join the investigation as and when required by the police. So grant of pre-arrest bail to the petitioner would not frustrate investigation viz. "recovery", rather it would be furthering the ends of justice. On the other hand, if the bail is refused and the petitioner is arrested then in such an eventuality, he will suffer irreparable humiliation and injury to his honour, self-respect, reputation and liberty, inasmuch as, the ultimate conviction of a guilty person may repair the wrong caused by mistaken grant of bail to him but no satisfactory reparation can be offered to an innocent respectable person for his unjustified arrest, detention and insult, in the event of his acquittal in the long run. The basic idea and the object of the law of pre-arrest bail is to protect the liberty and honour of respectable citizen from humiliation at the hands of the police or any other agency in appropriate cases. Once the Court entertains reasonable doubt about the bona fide of the intended arrest of a citizen then it would be its duty to shield him. For these reasons, I am of the view that this is a proper case in which this Court should come the rescue of the petitioner and save him from insult and humiliation, by means of unjust arrest."
8. In the light of above discussion each and every case has to be looked into by the Courts while dealing with the petition for grant of pre-arrest bail in accordance with the facts and circumstances of each case and grant or refusal of bail application is to be strictly in accordance with the principles laid down as above mentioned.
9. So far as, the present case is concerned, as already mentioned alleged abductee has already been recovered, no allegation is leveled against both the petitioners for alleged sexual assault on the abductee as compared to their co-accused/main accused. Resultantly, this application is allowed. Pre-arrest bail already granted to petitioners vide order dated 26.5.2010 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs, 50,000/- each with one surety each in the like amount to the satisfaction of learned trial Court within one week otherwise this petition would be deemed to have been dismissed.