MUHAMMAD ANWAARUL HAQ, J.---Through this petition, petitioners Imdad Hussain and Ijaz Ahmad seek pre-arrest bail in a Private Complaint titled "Mazhar Farid v. Ahmad Khan etc.", under sections 302, 324, 148, 149, P.P.C., Police Station Haveli Lakha, District Okara.
2. Learned counsel for the petitioners contends that it is a case of two versions, one given in, the F.I.R and second given by Shabbir Ahmad, real brother of the deceased Muhammad Tufail, through a separate private complaint totally exonerating the present petitioners; that no recovery was effected from the petitioners and during all the investigations in the State case they have been found innocent; that injury attributed to the petitioner Imdad Hussain in the F.I.R, hitting the left elbow of the deceased Muhammad Tufail, is not on the vital part of the body and was not found fatal; that no injury on the person of the deceased has been attributed to the petitioner Ijaz Ahmad.
Further contends that the learned trial Court has already summoned the set of accused mentioned in the private complaint filed by Shabbir Ahmad and they are facing trial; that private complaint against the petitioners has been filed by the complainant with an inordinate delay of more than two months; that the stance taken by an eye-witness of the occurrence (real brother of deceased Muhammad Tufail) exonerating, both the petitioners makes the case against them one of further inquiry into their guilt and that summoning order of the learned trial Court does not contain any reason whatsoever.
3. On the other hand, learned counsel for the complainant vehemently opposing this bail petition contends that petitioners are nominated in a promptly lodged F.I.R. With the specific role of causing firearm injuries; that the petitioner Imdad Hussain has been attributed injury on the person of the deceased, whereas petitioner Ijaz Ahmad has been attributed injury on the person of the injured P.W. Zafar Iqbal; that version of the complainant in the F.I.R is substantially supported by the medical evidence and if there is any doubt that cannot be appreciated at this stage; that the petitioners even otherwise are responsible for the every act of their co-accused and are vicariously liable for the murder of two innocent persons. Also 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 and there is no such mala fide of the complainant to falsely involve the petitioners in this case. Learned Deputy Prosecutor-General emphasized that in view of the judgment of the Hon'ble Supreme Court of Pakistan in the case of Legman All v. Hazaro and another (2010 SCM R 611), the petitioners cannot be allowed bail and they have to surrender and are required to be remanded to judicial custody, as desired in the dictum, referred above.
4. Arguments heard. Record perused.
5. The .Argument of the learned Deputy Prosecutor-General that in view of Luqman Ali's case (2010 SCM R 611) the petitioners have to surrender and are required to be remanded to judicial custody, is misconceived. For ready reference, Paras-11 and 13 of the verdict are reproduced below:-- "11. In such a situation when the accused appears in pursuance of process under section 204, Cr.P.C. Either through summons or warrants or bailable warrants or on his own and if the offence is non-bailable then the provisions of section 497, Cr.P.C. Would be attracted and accused could only be released after moving such application and grant of the same. If no such application is moved or no bail is granted by any competent Court either under section 497 or 498, Cr.P.C, as the case may be, then the accused is- required to be remanded to judicial custody till the time a proper order is passed either by the trial Court or by the superior Court.
13. In the light of what has been discussed above, the impugned order passed by the learned High Court is set aside and the remarks recorded against the learned Additional Sessions. Judge are expunged. The respondent is directed to surrender before the trial Court immediately. However, he may move an application for grant of bail under section 497 or 498, Cr.P.C, as the case may be, which shall be decided in accordance with law and merits of the case."
It is clearly emphasized by the Hon'ble Supreme Court of A Pakistan in the judgment supra that an accused, summoned in a private complaint, can validly move an application for bail and the same can be decided on merits within the parameters prescribed under section 497/498, Cr.P.C. Keeping in view the guiding principle in this regard set up by the Hon'ble Supreme Court of Pakistan.
6. On merits, admittedly it is a case of two versions, one given by the complainant in the F.I.R implicating the petitioners and the second given by the real brother of the deceased Muhammad Tufail (an eyewitness in the F.I.R) through a separate private complaint against another set of accused but, totally exonerating the present petitioners. The injury attributed to the petitioner Imdad Hussain on the elbow of the deceased Muhammad Tufail has not been declared fatal, whereas injury B attributed to the petitioner Ijaz Ahmad on the person of P.W. Zafar Iqbal at the same time has been attributed to his co-accused Muhammad Khan. During the investigation, petitioners were found innocent. It is true that in the private complaint the petitioners have been summoned by the learned trial Court, but at the same time the same learned trial court, after preliminary inquiry, has also summoned the other set of the accused in the complaint filed by Shabbir Ahinad. In this view of the matter, possibility of false implication of the petitioners cannot be totally ruled out and I am of the considered view that in the peculiar circumstances of this case issuance of process under section 203, Cr.P.C. May be a 'sufficient ground for proceeding against the petitioners, but it cannot be equated with the 'existence of reasonable grounds' to believe that accused are guilty of an offence as contemplated under section 497(1), Cr.P.C.
Needless to mention that while deciding a pre-arrest bail, some expected advancement in the investigation in the form of some recovery etc. After the arrest of the accused is a relevant consideration; but in this case petitioners have already been declared innocent during the investigation and there is no question of any recovery involved to their extent. Thereforesending them behind the bars only for the reason that they may be released on bail after their arrest is altogether unjustified. In this context, 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:-- "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 vs. 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."
7. In view of all above, this petition is accepted and ad interim pre-arrest bail already allowed to the petitioners by this Court vide order dated 30-6-2011, .Is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.100,000 (Rupees one hundred thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court within a period of fifteen days from today.
8. It is, however, clarified that the observations made hereinabove are just tentative in nature and strictly confined to the disposal of this bail petition.