1. ' SHAHID ANWAR BAJWA, J.---F.I.R. No,171 of 2010 was recorded at PS, Kotdiji on 30-9-2010 at 2-00 p.m. For an incident alleged to have taken place on the same day at 1-00 p.m. Complainant stated that Sikandar Ali was his nephew. About one year ago, niece of Arz Muhammad was married to nephew Goro of the complainant and sister of Arz Muhammad was married in another community.
2. This annoyed Arz Muhammad and his brothers. On the fateful day, when the complainant was sitting with his relatives including Sikandar at a hotel, four persons including three applicants came there. Arz Muhammad challenged Sikandar and thereafter, fired directly at Sikandar, which hit him and he fell down. Other persons resorted to aerial firing and escaped.
3. ' Learned counsel submitted that only direct role is alleged against Arz Muhammad and case against the applicants, at best for the prosecution, is of ineffective firing and, therefore, they had no intention to commit murder. Learned counsel relied upon Yahoo v. The State, 2004 SCMR 864, Rahmatullah v. Fazal Baqi and another, 1998 SCMR. 455 and Attaullah and three others v. The State and another, 2004 SCMR 864. Learned counsel submitted that case has been challaned and the applicants are no longer required for investigation. Learned counsel also submitted that unlike section 497, Cr.P.C, there are no limitations on the powers of High Court or Sessions Court to grant bail under section 498, Cr.P.C.
4. Learned APG submitted that F.I.R. Has been promptly lodged. He further submitted that though the allegation against the applicants is of ineffective firing, present application is in the nature of bail before arrest and since no harassment at the hands of Police has been established, present applicants are not entitled to bail before arrest and confirmation thereof.
5. ' I have considered submissions made by the learned counsel and have also gone through the record.
6. As far as the allegation of ineffective firing and participation in the crime is concerned, a perusal of the F.I.R. Indicates that the applicants did not resort to any firing at the deceased and all that has been alleged against them is ineffective firing. Therefore, in view of the Attaullah's case (supra), Rahmatullah's case (supra) and yaroo's case (supra), case for bail is made out, that is as far as merits of this bail application qua the allegations are concerned. Learned APG submitted that no mala fides or allegation at the hands of Police are alleged and, therefore, grounds urged by the learned counsel, though they may be good and valid grounds for grant of bail after arrest, cannot be taken into consideration while granting bail before arrest. It is quite a vexed question and if I may paraphrase it, the question is if on merits case for bail is made out should bail before arrest be refused merely because no allegation of harassment at the hands of Police, dishonour, disgrace or humiliation are alleged. A Full Bench of Lahore High Court was constituted in 1948 and in the case of Hidayatullah Khan Khan son of Sher Nawab Khan v. The Crown, PLD 1949 Lahore 21, it laid down as under:-- "For the reasons given above, the reply which I would give to the question referred to us is that, in a proper case, the High Court has power under section 498, Criminal Procedure Code, to make an order. That a person who is suspected of an offence for which he may be arrested by a Police Officer or a Court, shall be admitted to bail. The exercise of this power should, however, be confined to cases in which not only is good prima facie ground made out for the grant of bail in respect of the offence alleged, but also it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm."
7. ' In Zeeshan Kazmi v. The State, 1997 PCr.LJ 881, Mr. Justice Kamal Mansur Alam laid down as under:- - "10. The main conditions to be satisfied before exercise of jurisdiction to allow pre-arrest bail under section 498, Cr.P.C. Are--
(a) that there should be a genuine-proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner;
(b) that the petitioner should physically surrender to the Court;
(c) 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;
(d) that it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr.P.C.
8. Would have to be kept in mind;
(e) that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr.P.C."
9. ' In Muhammad Ramzan v. Zafarullah and another, 1986 SCMR 1380, case of murder was initially instituted against seven persons; majority of whom were not attributed any specific role insofar as physical injury to the victim was concerned. Some of them were allowed bail before arrest while others were allowed bail after arrest. The order, by which bail before arrest was granted, was challenged and ultimately, Supreme Court observed as under:- "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".
10. ' In Ali Gohar and five others v. The State, 2008 PCr.LJ 652, a Single Judge of this Court relied upon Fazal alias Bodi v. The State 1979 SCMR 9 and Muhammad Ramzan's case (supra) and allowed pre- arrest bail. In Sarwar Sultan v. The State, PLD 1994 SC 133, a three members' Bench of the Supreme Court held as under:-- "9. From legal angle, it can be said that there is material difference between bail after arrest as contemplated under section 497, Cr.P.C. And bail before arrest under section 498, Cr.P.C. In non- bailable offence, an accused is not to be released on bail by the Court, if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life or ten years. Of course it is also provided that bail can be granted on exceptional grounds of age, infirmity and sex and also if there are sufficient grounds for further inquiry and also on the ground of statutory delay. As against that under section 498, Cr.P.C. High Court or Court of Session can grant bail at any stage and this provision is normally used for bail before arrest. In this provision amendment has been made and by Code of Criminal Procedure (Amendment) Act XII of 1976 section 498-A is inserted imposing restriction on grant of bail before arrest to a person, who does not surrender before the Court or against whom no case is registered. Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime. The Court has to keep in view all these factors in order to maintain balance between both parties and would be cautious not to give undue advantage to one party over the other at the stage of investigation. Of course there is no cavil about the proposition that the Court has power to grant bail before arrest in an appropriate case, if the Court is satisfied that is a fit case for grant of such relief within the limits of law also it stated above". (emphasis supplied)
11. ' Last case in the series is Rana Muhammad v. Muhammad Rafique, PLD 2009 SC 427. This is a Judgment by a two members' Bench of the Supreme Court and the Supreme Court summarized taw in this regard as under:-
(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;
(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;
(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i,e,, unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;
(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disagree and dishonour him;
(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. He had no past criminal record or that he had- not been a fugitive at law; and finally that;
(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instant i,e, the Court of Session, before petitioning the High Court for the purpose.
12. Survey of the above case-law indicates that considerations for grant of pre-arrest bail are not at all different, as far as merits of the case are concerned, from the considerations for grant of post arrest bail. The only difference, which has been highlighted in certain Judgments, is that there must be additional basis of humiliation, harassment, mala fides, intention to disgrace and dishonour (Rana Muhammad Arshad's case). This particular view has to be read in juxtaposition with view of two members' Bench of the Supreme Court in Muhammad Ramzan's case (supra) where the honourable Supreme Court said that if a person is otherwise entitled to bail, no useful purpose shall be served by putting such person firstly behind bars and then allowing him bail. In Sarwar Sultan's case (supra) it has been held that the Court has to keep a balance but it has been then observed that if a fit case for grant of bail is made out, bail before arrest should be allowed in appropriate cases.
13. ' As far as help in the investigation is concerned, if in a pre-arrest bail, a direction is issued to the applicant that he must join the investigation and thereby answer relevant Polioe questions, the objective of assistance in the investigation would be served. It is too late in the day to argue that unless the Police puts a person through its "specific methods" by having complete control over the mind, body and environs of such a person, only then Police can make any headway in the investigation. Saying so would mean that in terms of investigation capabilities, the Police is not much farther from the days of Mughals or Colonials. The things have sufficiently advanced in life for Police to resort to whatever degree methods for extracting information.
14. ' The second ground is disgrace, dishonour or humiliation. Except for political leaders, who at times care for incarceration either for national causes or for altruistic reason or to increase their status, as far as Joes in the streets are concerned. It would be difficult to visualize a situation where a person would feel honoured and respected if he is arrested by Police and dragged in chains from one Court to another. It is one thing for Sultan Rahi in the films to claim that chains are Zaiwar of man and it is another thing in the society for such a person to walk in streets with head held high.
15. Therefore, inevitably, in my opinion, in all or almost all cases where a person is arrested, there is an element of disgrace, dishonour and humiliation. It is high time that bail before arrest cases be followed in the light of modern trends of civilized society, rather than following barbaric feudal traditions.
16. In the present case, F.I.R. Was registered in September, 2010. The present applicants are not even alleged to have fired at the deceased and learned APG has failed to point out as to how investigation would be assisted by the applicants being made to yield into clutches of Police or his honour would not be besmirched by his being arrested. Consequently, this bail application is allowed and the bail, already granted, is confirmed on the same terms.
17. Pre-arrest .