MUHAMMAD ANWAARUL HAQ, J.---Through this petition Zafar Iqbal petitioner seeks pre-arrest bail in case F.I.R. No, 467 of 2010 registered at Police Station Saddar Depalpur, District Okara, on 6-8-2010 in respect of an offence under section 365-B amended with section 376, P.P.C.
2. Learned counsel for the petitioner contends that the case against the petitioner is totally false and is based upon mala fide of the complainant; that in fact it is a case of runaway marriage, the alleged abductee Mst. Shugufta Bibi had contracted marriage with the co-accused Muhammad Ramzan Asim but subsequently resiled from her previous stance; that co-accused of the petitioner namely Muhammad Ramzan .Asim and his father Ghulam Rasool have already been allowed bail after arrest by this Court through Criminal Miscellaneous No, 12175-B/2010 and Criminal Miscellaneous No, 10885-B of 2010, respectively and case of the present petitioner is at better footing than the case of his co-accused already enlarged on bail. Learned counsel for the petitioner adds that petitioner was only a witness of the Nikah and performance of the same has been admitted by the alleged abductee in the court of learned Area Magistrate on 30-7-2010.
3. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant while opposing this bail application contends that pre-arrest bail is an extraordinary relief and cannot be granted in routine without the proof of mala fide on the part of the complainant or of the police; that the petitioner is specifically nominated in the F.I.R. and the alleged abductee Mst. Shugufta Bibi has fully implicated the petitioner .in this case; that the case of the co-accused allowed bail is quite distinguishable as they were granted after arrest bail whereas considerations for pre-arrest bail are altogether different and the petitioner even if seems to be, entitled for after arrest bail deserves to be arrested first to claim the rule of consistency.
4. Heard. Record perused.
5. The Investigating Officer present in the Court frankly concedes that the petitioner is no more required to him for the purpose of investigation in the matter.
6. Admittedly, the main accused Muhammad Ramzan Asim has already been allowed bail after arrest by this Court through Criminal Miscellaneous No,12175-B of 2010 on 5-11-2010 and in Para No,6 of the order, it has been observed as under:-- "Admittedly there is Nikah Nama which was performed on 11-2-2009 between the petitioner and Shagufta Parveen, the alleged abductee. When confronted learned Law Officer failed to establish that whether any proceedings have been carried out by the Investigating Officer in order to ascertain authenticity of the said Nikah Nama during the course of investigation. There are divergent statements on_ the part of the alleged abductee. Firstly she has stated that she entered into Nikah with her free will and consent and subsequently she resiled from her said statement when she was in the custody of her parents.--- ----Without commenting more on the facts and circumstances, I am of the considered view that the case against the petitioner is one of further inquiry into his guilt falling with the ambit of section 497(2), Cr.P.C. Moreover, one of the co-accused namely Ghulam Rasool has already been admitted to bail by this Court in terms of order dated 7-10-2010, therefore, the petitioner is also entitled to the concession of bail on the principle of rule of consistency in view of dictum of law of august Supreme Court of Pakistan in the case of Muhammad Fazal Ilyas Bodi v. The State (1979 SCM R 9)".
7. Apparently the case of the petitioner, who is a witness of the Nikah mentioned above, is at better footing than the case of his co-accused Muhammad Ramzan Asim but the main question to be resolved is, whether an accused can claim the benefit of rule of consistency in his pre-arrest bail petition on the basis of an after-arrest bail allowed to his co-accused. Needless to add that considerations for grant of bail before arrest and bail after arrest are entirely on different footing.
Humiliation and unjustified harassm ent is a sine qua non for pre-arrest bail besides the mala fide of the complainant or of the police. But at the same time, another consideration while deciding a pre-arrest bail before the court is some expected advancement in the investigation in the shape of some recovery after the arrest of the accused in some appropriate cases. In the cases where arrest of the accused is not a necessary requirement of the Investigating Agency, sending the accused/petitioner behind the bars only for the reason that he may be released on bail after his arrest is altogether unjustified and Court while deciding such like cases must avoid to be a party to please/satisfy the ego of the complainant party. I respectfully refer the case of Muhammad Ramzan v. Zafar Ullah and another (1986 SCM R 1380) where the Hon'ble Supreme Court has, observed as under:-- "(2) The case of murder was initially instituted against seven persons. The majority of them were not attributed any specific role in so far as the physical injuries to the victims areconcerned.
Accordingly, in this category the respondent was allowed bail before arrest and some others were allowed bail after arrest. The petitioner has chosen not to challenge the grant of bail after arrest to the other persons falling in the same category to which the respondent belongs. The distinction made according to the learned counsel, is based on the fact that he has been allowed bail before arrest.
(3) After hearing the learned counsel we feel that prima facie, at this stage, the case of the petitioner is not distinguishable from that of others to whom bail has been allowed. No useful purpose would be served if the bail of Zafar Ullah Khan respondent, is cancelled on any technical ground because after arrest he would again be allowed bail on the ground that similarly placed other accused are already on bail. We, therefore, in the circumstances of this case, do not consider it a fit case for grant of leave to appeal. This petition accordingly, is dismissed."
In the case of Muhammad Aslam v. The State 2000 YLR 1341 this Court has observed as under: -- "The petitioner appears to have a reasonably good case for post-arrest bail on the basis of suddenness of the occurrence, lack of premeditation on the part of the accused party, divergent findings of different Investigating Officers of this case and admission of a co-accused to post- arrest bail. Thus, it shall have a colour of ludicrousness if he is sent behind the bars for a few days by dismissing his application for pre-arrest bail so as to enable him to come out of jail after a few days on post-arrest bail. I for one would not like to be a party to such a mockery of the system."
The case in hand is an example of the situation where arrest of the accused/ petitioner is not required by. the Investigating Officer and I am not agreeing with the learned counsel for the complainant that petitioner without going to jail cannot claim his bail on the rule of consistency.
8. Keeping in view the principle laid down in the cases referred above, I do not find any justifiable reason to send the petitioner behind the bars. This petition is, therefore, accepted and ad interim pre-arrest bail already allowed to the petitioner by this Court vide order dated 18-3-2011 is hereby confirmed subject to his furnishing fresh bail bond in the sum of Rs,100,000 (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court/Area Magistrate within a period of ten days from today.
9. It is, however, clarified that observations made herein are just tentative in nature and strictly confined to the disposal of this bail petition.