JAVED IQBAL, J. -- This petition for leave to appeal is directed against order dated 5.3.2009 passed by the learned Single Judge of the Lahore High Court (Bahawalpur Bench) Bahawalpur, whereby the pre-arrest bail granted to the petitioners has been cancelled against whom a case was registered by means of F.I.R. No, 136/2006, dated 30.4.2006 under Sections 148, 149, 337-F(V), 342 and 365, PPC at Police Station Saddar Sadiqabad by complainant Zafar Ali with the allegation that on 30.4.2006 petitioners took him forcibly in a Suzuki car and committed sodomy and kept him in unlawful confinement amounting to abduction.'
2. Sardar Muhammad Ghazi, learned ASC entered appearance on behalf of petitioners and urged with vehemence that learned single Judge in Chambers of High Court has not followed the law laid down by the Supreme Court regarding cancellation of bail allowed by a Competent Court could not have been cancelled in the absence of exceptional circumstances which escaped the notice of learned High Court resulting in serious miscarriage of justice as the pre-arrest bail granted in favour of the petitioners by learned Additional Sessions Judge, Sadiqabad dated 27.5.2008 has been cancelled without any lawful justification, lt is contended that the concession of bail was neither misused nor any such allegation has ever been levelled, lt is further argued that the petitioners never remassfcd absconders but on the contrary each hearing was attended, lt is also pointed out that no evidence worth the name has come on record justifying the cancellation of bail as a concocted and false case with ulterior motives was (Jot registered against the petitioners.
3. Mr. Arshad AN Chaudhry, learned AOR for the complainant has opposed the view point as canvassed at bar by Sardar Muhammad Ghazi, learned ASC on behalf of petitioners with the submission that serious allegation of sodomy has been levelled and in the absence of mala fides or ulterior motives, the question of grant of ad-interim bail does not arise, It is next contended that there was no lawful justification whatsoever available for the learned Additional Sessions Judge to extend the Concession of pre'-arrest bail by whom the entire evidence has not been taken into consideration causing serious pre-judice against the complainant.
4. Mian Asif Mumtaz, learned Deputy Prosecutor General has entered appearance on behalf of State and supported the order impugned and highlighted the conduct of the petitioners which according to him, was highly objectionable and critical as they remained absconders and concession of bail, according to him, has rightly been withdrawn because such facility could not be extended to the accused persons who were fugitive from law.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. Before we could dilate upon the question as to whether impugned order has been passed in accordance with law or otherwise, it is worth mentioning that while discussing the question qua anticipatory bail it was observed by this Court in case titled Murad Khan v. Fazal-e-Subhan (PLD 1983 SC 82) as under:-- "As would be present^ 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 emphasized 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 motives". This being the reiteration in Ali Muhammad v. Yamin and another (1981 SCMR 1139), it may be observed here that addition of Section* 498-A, Cr.P.C, by an amendment in 1976 has not change the afore-noted position. The principle for grant of anticipatory bail remains the same, ln the precedent case, it was held that the said condition was not satisfied accordingly the anticipatory bail allowed by the High Court was cancelled by this Court. On the other hand in Ch. Zahur llahi v. The State (1981 SCMR 935); 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 (PLD 1953 FC 170) and Sadiq Ali v. The State (PLD 1976 SC 589), examined the merits and allowed bail which had earlier been refused by the High Court, ln an earlier Lahore case, Sh. Zahoor Ahmad v. The State (PLD 1974 Lah. 256) one of us J"(as a Judge of the High Court) considered the scope of last mentioned two rulings in the case of Khushi Muhammad and Sadiq Ali and also examined the rules laid down in the Full Bench case of Hiddayat Ullah Khan v. The Crown (PLD 1949 Lah. 21), and case of Muhammad Ayyub v. Muhammad Yaqub (PLD 1976 SC 1003). ln para 10 of the judgment in the case of Shah Zahoor Ahmad, five conditions were noted as deducible from the precedent law. One of the conditions was that "on account of ulterior motive 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, ln a recent Full Bench's decision of Lahore High Court in Shabhir Ahmad v. The State (PLD 1981 SC 93) again after making reference to the cases of Hidayat Ullah Khan, Khushi Muhammad and Sadiq AN, 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 could strictly avoid the exercise of this power at random, which is likely to embarrass the prosecution investigation as usually is the general complaint. The balance has to be kept and each cases had to be dealt with on its own merits...The Court whould 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. A similar question was also discussed in case titled Muhammad Safdar v. State (1983 SCMR 645) and it was observed as under:-- "Bail before arrest is not the rule in cognizable offences, and is to be allowed only when it can be shown that the petitioner apprehends arrest due to some ulterior motives on the part of the authorities or other influential persons, or there are some peculiar features of the case which would justify the exercise of this discretionary power by the High Court or the Sessions Court",
7. On the touchstone of the criterion as laid down and mentioned hereinabove the case in hand has been examined. We have perused the judgment impugned carefully, It mainly prevailed upon the learned single Judge in Chambers that the petitioners remained absconders and thus misused the concession of pre-arrest bail. A careful analysis of the record would negate the above conclusion. Besides that the learned Additional Sessions Judge has mentioned in a categoric manner that the petitioners were never served with any notice after submission of Challan and hence the question of their absconsion does not arise.. We ^ are conscious of the fact that an in- depth scrutiny of the entire evidence is not required in such-like cases but it is to be kept in view that no decision can be made in vacuum. A cursory glance of the evidence would be quite inevitable to see as to whether the case was registered with mala fides and ulterior motives or a prima facie case connecting the petitioners with the commission of alleged offence is made out and thereafter it can be decided as to whether concession of pre-arrest bail can be extended in their favour of otherwise? Before we could dilate upon the question as to whether a prima facie case allegedly got registered with ulterior motives is made out or not, it would be interesting to note that case was got registered against entire family. The y petitioners namely Shoaib Irshad and Zohaib Irshad are real > brother and Muhammad Irshad is their real father. Now adverting to the question as to whether a prima facie case is made out or otherwise, it is to be noted that no evidence qua sodomy has come on record and further no arm injury whatsoever was found on the body of complainant except fracture of finger which according to medical report was fabricated and the fracture was described as "self-suffered", "lt must not be lost sight of that initially the case was got registered under Sections 148, 149 and 342, PPC and subsequently the addition of Section 365, PPC was made which depicts the mala fide and ulterior motives, lt is worth mentioning that litigation is pending between the parties on the water course which indicates the factum of enmity.
As mentioned hereinabove, nothing could be produced on record showing that the concession of the pre-arrest bail has been misused and the petitioners remained absconders.
8. In view of what has been sated hereinabove, we are inclined to convert this petition into appeal which is accepted, the order impugned is set aside and the order passed by learned Additional Sessions Judge, Rahim Yar Khan dated 27.5.2008 shall remain intact.
9. These are the reasons of our short order dated 6.5.2009 which is reproduced herein below for ready reference:-- "For the reasons to be recorded separately, this petition is converted into appeal and allowed, the order impugned is set aside and the pre-arrest bail granted by the learned Additional Sessions Judge by means of order dated 27.5.2008 shall remain intact, Learned Trial Court is directed to dispose of the matter preferably within a period of three months, In case the appellant remain absent during trial, their bail shall be cancelled immediately by the learned Trial Court."
' The observations made hereinabove are tentative in nature and shall hot affect the merits of the case.