' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Apprehending his arrest at the hands of police, Muhammad Yaqoob alias Kola petitioner, seeks his pre-arrest bail in case F.I.R. No,552 of 2011, dated 23-5-2011, offence under sections 302, 324, 148, 149, P.P.C., registered at Police Station Shandra Town, Lahore, lodged at the instance of one Liaquat Ali.
2. Prosecution case, in brief, as per contents of the F.I.R., is that the petitioner armed with pistol along with his co-accused trespassed into the. House of the complainant and made fire shot, which landed on the right thigh of Safian son of the complainant/ injured prosecution witness, while the co-accused of the petitioner made firing upon Qaiser son of the complainant thereby committing his murder.
3. Learned counsel for the petitioner in support of his petition contends that the petitioner has been falsely roped in this case against the actual facts and circumstance by the complainant with mala fide intention in connivance with the local police for satisfying ulterior motives. Learned counsel vehemently submits that the occurrence had taken place at the odd hours of night, however, no source of light has been shown in the crime report. Learned counsel further contends that the complainant has thrown a wider net and all male members of the family and close relatives have been involved in the instant case. The petitioner, learned counsel urges, being the brother-in-law (behnoai) of the main accused has also been saddled with the liability. It is next argued that the presence of the petitioner at the place of occurrence is natural being resident of the adjacent house. Further contends that during the course of investigation it was found that the petitioner had not participated in the occurrence and he was mere present at the spot being neighbourer.
Learned counsel next submits that such findings of the local police have not been challenged by the prosecution/complainant. Even otherwise, learned counsel submits, during the course of investigation the petitioner offered to the complainant/Investigating Officer that if Muhammad Azam son of the complainant/eye-witness of the occurrence gives special oath on the Holy Quran that he had fired as alleged in the F.I.R., he would surrender himself and would not contest the case but the offer has not been accepted. Learned counsel vigorously submits that there is a cross- version of the occurrence in which Muhammad Qaiser son of the complainant had also fired, which hit Fayyaz brother of the main accused Shehbaz. It is further contended that there is nothing incriminating against the petitioner, he has been involved due to mala fide intention of the complainant by cooking a false story, therefore, he deserves the relief of pre-arrest bail.
4. Conversely learned Deputy Prosecutor-General assisted by learned counsel for the complainant has vehemently opposed this petition on the ground that the petitioner is nominated in the F.I.R.
With a specific allegation of making firing, which landed on the leg of the injured prosecution witness, which finds full corroboration from the MLR of the injured. It is argued that recovery of weapon of offence is yet to be effected. Learned counsel next submits with vehemence that conduct of the petitioner after obtaining ad interim bail is not above board and he is still harassing the complainant party, therefore, his case involving capital charge, he in no way is entitled to the extraordinary relief of pre-arrest bail.
5. Arguments heard. I have also gone through the record available on file.
6. Undeniably the petitioner is nominated in the F.I.R. With a specific role of causing injury on the non-vital part of the injured prosecution witness but the accusations levelled in the crime report were found false during the course of investigation. A detail inquiry in this regard was conducted and it was clear cut finding of the Investigating Agency that the petitioner has not participated in the occurrence in any manner and his mere presence at the spot was being next door neighbourer who had attracted to the spot as he is behnoai of main accused Shehbaz. The findings of the police have not been challenged by the complainant before any higher forum. It is apparent from the record that during the course of investigation, the petitioner himself offered special oath to one of the eye-witness of the occurrence, who happens to be real son of the complainant and real brother of the deceased, to verify the accusations levelled against him but the same was refuted.
Such findings are on the police record and the learned Deputy Prosecutor-General frankly conceded this aspect of the case. As far as the version of the State that this is a pre-arrest bail, which is extra ordinary relief and the same has to be granted sparingly is concerned, it is worth mentioning that no doubt the mala fide is a sine qua non for grant of pre-arrest bail but it is settled principle of law that the court can even look and evaluate the same from the facts and circumstances of the case, which apparently is oozing in this case. Moreover there is abundant case-law for the proposition that apprehension of arrest of an accused being for ulterior motive, for example, that of humiliation and unjustified harassment is a sine qua non for pre-arrest bail.
Respectful reliance in this regard is placed on the landmark judgment of the august Supreme Court of Pakistan in the case of Ajmal Khan v. Liaquat Hayat and another (PLD 1998 SC 97). Similar view was affirmed by the apex Court of the Country in the case of Syed Muhammad Firdaus and others v. The State (2005 SCM R 784) in the following terms:-- "Bail before arrest---Principles---Arrest for ulterior motives such as humiliation, and unjustified harassm ent is a valid consideration for grant of pre-arrest bail."
' Apart from this a person cannot be refuted the premium of bail only on the ground that he is nominated in the crime report. Mere mentioning the name of any person in a murder case does not disentitle him for grant of pre-arrest bail. The Court while deciding the petition can examine the C accusations, the report of the investigating agency and even can touch upon the merits of the case. Reference in this regard can be made to the cases of Meeran Bux v. The. State and another PLD 1989 SC 347 and Muhammad Riaz Minhes v. The State (1990 PCr.LJ 1353 Lahore).
7. In the instant case nevertheless there is a direct allegation of causing firearm injury on the non- vital part of injured prosecution witness, however, possibility cannot be ruled out that the prosecution has thrown a wider net and involved as many male members of the family. Petitioner being behnoai of the main accused was also saddled of causing injury but the same was found false during the course of investigation. The petitioner having not been assigned any overt act, does not constitute an offence and that's too being the neighbour, therefore, in opinion of this Court it is a fit case; wherein the Court should come for the rescue of innocent person. Needless to mention that investigation of the case is already complete and nothing is to be recovered from the petitioner.
8. For the foregoing reasons, this Court is of the firm opinion that sufficient grounds exist persuading this Court to allow this petition and confirm ad interim pre-arrest bail already granted to the petitioner in terms of order dated 29-8-2011 subject to his furnishing fresh bail bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of learned trial court.
9. Before parting with this order it is, however, made clear that the findings made hereinabove are tentative in nature and meant only for disposal of the petition in hand. These, however, shall have no bar on anybody's case at trial.
Pre-arrest .