SHAHID HAMEED DAR, J. --- Seeks cancellation of pre-arrest bail allowed to respondent No. 1, vide order dated 21.7.2010 passed by learned Additional Sessions Judge, Rawalpindi, in case F.I.R. No. 985, registered at Police Station, Westridge, Rawalpindi, on 14.12.2009 for offences under Sections 403/427/440, PPC.
2. Precisely, the prosecution case as stated by Arshad Faruq-complainant is that the vegetable crop grown by him over an area of 40 kanals of. Leased land was completely damaged at about 4.30 p.m. On 13.12.2009 by Muhammad Ishaq-respondent No. 1 and his co-accused, being armed with different weapon as they marshaled their driver to plough the said land by driving a tractor into it; the respondent-accused and his co-accused caused a loss of Rs. 9/10 lacs to the complainant as the produce was ripe enough for harvesting; the. Accused committed the occurrence in the backdrop of a property dispute.
3. The respondent-accused and others sought ad-interim bail before arrest from the Court of learned Additional Sessions Judge, Rawalpindi and got absent on 26.12.2009 as a result of which their bail petition was dismissed due to non-prosecution. Thereafter, they sought ad interim pre- arrest bail from this Court on 7.1.2010, enjoyed if till 17.6.2010 and again opted not to attend the Court as a result of which their repeated bail applicatiOn (Cr. M. No. 20-B/10) was again dismissed due to nonprosecution on 17.6.2010.
The respondent/accused in the company of the co-accused again succeeded in obtaining ad- interim bail before arrest from this Court through Cr. M. No. 971-B/10, but, withdrew the same on 5.7.2010 with the contention that they intended to move the Court of learned Additional Sessions Judge, Rawalpindi, for bail before arrest, afresh. This is how, they obtained the impugned order dated 21.7.2010 from the Court of learned Additional Sessions Judge, Rawalpindi; by moving another application for bail before arrest. Hence, the instant petition.
4. Learned counsel for the petitioner submits that the impugned order through which the respondent-accused had been admitted to bail before arrest has been passed' in flagrant violation of settled principles of dispensation of criminal justice; the respondent-accused failed to hint at any element of malice or ulterior motives on the part of the complainant or that of the police still extra-ordinary concession of pre-arrest bail was bestowed upon him which renders the impugned order unsustainable in the eyes of law; the respondent-accused alongwith his .Co- accused has committed a -non-bailable offence which is not only supported by the complainant but also by. The eye-witnesses in their statements under Section 161, Cr.P.C.; the conduct and demeanour of the respondent-accused clearly showed that he alongwith his co-accused played hide and seek with the Courts and finaly fetched the impugned order which does not contain any valid or sound reasons for acceptance of his bail plea; the respondent-accused had been held responsible for the commission of offence by as many as three investigation Officers, thereafter, he wickedly earned a sketchy opinion in nis favour from AIG (Vigilence)/CPO; Punjab, Lahore, the benefit whereof was extended to him by the learned Additional Sessions Judge, in complete violation of the relevant provisions of law on the point; there are no reasons to believe that the respondent-accused has not committed the offence alleged against him and his case is not open to further inquiry at all; the impugned order may be set aside and the bail allowed to the respondent-accused may be re-called.
5. On the other hand, learned counsel for the respondent-accused opposed the contentions of learned counsel. For the petitioner with the submission that the respondent-accused had been found innocent by a responsible Police Officer who had opined that the accused had reached the spot after the occurrence was over; the opinion recorded by the Investigation Officer has been rightly believed and given weight by the learned Additional Sessions Judge and the impugned order does not call for interference; the investigation stands completed and a report under Section 173, Cr.P.C. Is already in the pipe line for submission before the Trial Court; the offence with which the respondent-accused is charged does not fall within the prohibitory clause of Section 497, Cr.P.C. And grant of bail in such like cases is a rule and rejection, an exception. The impugned order is well-reasoned and does not suffer from any legal defect.
6. The learned DPG has endorsed the submissions of learned counsel for the petitioner and adds that the impugned order is not sustainable, as it has been passed in a slipshod manner, alien to the principles governing such an extra-ordinary relief.
7. I have heard the learned counsel for the parties and gone through the relevant record. The case of the respondent-accused has a chequered history as he alongwith his co-accused has been playing hide and seek with the Courts through his clever skirmishes whereby he defeated the very purpose of relevant provisions, governing the dispensation of criminal justice. The hallmark of the case of the respondent-accused is that he never felt shy of getting absent on the last date of hearing fixed either by the Court of learned Additional Sessions Judge or by this Court for hearing of his bail plea. He has been having the facility of ad-interim pre-arrest bail at his choice and he always moulded the situation to his liking and benefited himself, be it his first pre-arrest bail application, or third in number. The respondent-accused again exploited the situation on 5.7.2010 when his case has already been argued before this Court and withdrew the same under the pretext, that he wanted to approach the Court of learned Additional Sessions Judge again by way of yet another application for bail before arrest. This is how he gained the time and enjoyed the luxury of ad-interim bail before arrest for many months. To encapsulate the intelligent and clever moves of the respondent-accused it can be held, whatever he has done in the instant case right from its inception, he has misused the concession of bail fearlessly. A copy of the challan has been submitted by the learned counsel for the respondent- accused, which shows that the name of the respondent- accused has been placed in its column No. 3. The contention of learned counsel for respondent-accused that in one of the investigations, the respondent-accused has been held innocent by the Investigation Officer stands evaporated because of the mentioning of the name of the accused in the aforesaid column of the challan. It indicates that the Inspector/SHO, was fully convinced about the culpability of respondent No.1. The significant feature of the case is that the co-accused of the respondent-accused having been admitted to bail, have absconded.
8. The bail before arrest is an extra-ordinary relief, the scope whereof is very narrow which is restricted only to the innocent. Unless an accused can show or hint at the element of malice or ulterior motives on the part of the complainant or that of the police he cannot be held entitled for the same relief. I have gone through the opinion recorded by the above-said Investigation Officer in favour of the respondent-accused but there are hardly any circumstances, which could be resolved in his favour during investigation. In all the earlier investigations, the Investigation Officers had extensively investigated the case and found the respondent- accused involved in the occurrence but the last Investigation Officer without collecting. Any viable defence evidence recorded a shoddy opinion in favour of the accused, benefit whereof was extended to the accused in an injudicious manner by the learned Additional Sessions Judge, Rawalpindi. The respondent- accused' alongwith his co- accused have committed an offence which is, prima facie, non- bailable and by no stretch of imagination the case of the respondent-accused calls for further inquiry into his guilt within the scope of Section 497(2), Cr.P.C.
9. For the foregoing reasons I accept this application, set aside the impugned order and recall the prearrest bail allowed to the respondent-accused vide order dated 21.7.2010.