RAJA SAEED AKRAM KHAN, J. --- This revision petition has been directed against the consolidated order of the Shariat Court dated 07.10.2011, whereby, the concession of pre-arrest bail granted by the Shariat Court to the accused-respondents was finally confirmed.
2. The facts arising from this revision petition are that three F.I.Rs. Were lodged at Police Station Fatehpur Thakyala by different complainants in the offences under Sections 324/452/353/186/147/148/149/337-H(2)/337-A to F/ 435/436/109 and 427, A.P.C., read with Section 20, E.H.A. On 28.06.2011 at 12:15 a.m., 2:00 a.m., and 5:45 p.m. Respectively. F.I.R. No. 53/11 was lodged by Mirza Muhammad Maqsood, Inspector/SHO Police Station Fatehpur Thakyala stating therein that a protest was scheduled by Muslim League (N) against the results of the election conducted on 26.06.2011. On receiving the information the complainant deputed different platoons for maintaining the law and order situation in the premises of the Returning Officer/Civil Court alongwith the duty Magistrate. At 12:00 p.m., a rally comprising of 2500 to 3000 persons lead by Sardar Farooq Sikandar Khan 'eached at the outer door of the Court premises 48 persons armed with sticks and dandas entered into the main gate. The police deputed on the spot tried to push them back but the assailants with criminal intention and by forming an lawful assembly launched an attack at police officers with sticks and dandas, resultantly, amongst others, the complainant was also got injured. The protestants set at fire the premises of Civil Court as well as the office of the SDM and the vehicles parking there. They also set ablaze the judicial record.
3. F.I.R. No. 54/11 mentioned above was lodged regarding the same occurrence and on the same facts by Syed Manzoor Hussain Shah, Reader of the office of Assistant Commissioner, F'atehpur Thakyala. The 3rd F.I.R. No 55/11 lodged by Muhammad Shabbir Civil Judge/Returning Officer, Fatehpur Thakyala at 5:45 p.m. In which he also nominated the accused-respondents about to set the judicial record as well as the Court building at fire. Additionally, it is stated in the F.I.R. That Returning Officer as well as Tehsil Qazi were also beaten by them and dragged out of the Court.
After registration of the cases the respondents filed separate applications for grant of pre-arrest bail before the Shariat Court. The learned Shariat Court while accepting the applications confirmed the pre-arrest concession of bail granted to the respondents, herein, vide consolidated order dated 07.10.2011, which is the subject-matter of this revision petition.
4. Mr. Muzaffar Ali Zaffar, Additional Advocate General argued that the learned Shariat Court failed to appraise the evidence available against the respondents while granting and confirming the concession of pre-arrest bail. He further argued that the powers under Section 498, Cr.P.C., can only be exercised in extraordinary circumstances. He contended that the persons involved in the heinous offences are not entitled to get the concession of pre-arrest bail. He further contended that the principle laid down by the Superior Courts for grant of bail before arrest and after arrest are quite different. The Shariat Court while granting the concession of bail has not taken into account the same. He further contended that all the accused-respondents were members of an unlawful assembly who attacked the Court, Police Station and other State buildings. They also set at fire the Court building and the judicial record as well. He submitted that during the occurrence, number of police officials and a learned Civil Judge were injured. Therefore, the accused- respondents were not entitled to the concession of bail, but the learned Shariat Court has failed to exercise the powers judiciously rather the same have been exercised in an arbitrary manner. He further submitted that the learned Shariat Court has also not kept in mind the conduct of the accused, who after seeking the bail, did not join the investigation, therefore, the police could not recover the incriminating material against them. He further submitted that the investigating agency is intended to submit a supplementary challan after joining the investigation by the respondents. He argued that the learned Shariat Court was not justified to exercise the power in favour of the accused against whom sufficient material was available. He contended that the Shariat Court has wrongly exercised the power under Section 498, Cr.P.C., while granting the bail before arrest directly, whereas, the proper course was to move the Trial Court at first. There was no male fide or ulterior motive to falsely implicate the respondents. He further argued that one of the F.I.Rs. Was registered on the complaint of learned judicial member, but this fact has also not been taken into account by the learned Shariat Court, which is against the norms of justice. He added that the learned Shariat Court has committed grave illegality while not taking into account that the charge against the accused falls under the prohibitory clause of Section 497, Cr.P.C., and in such- like cases the accused are not entitled to get the extraordinary relief.
5. On the other hand, Sardar Muhammad Raziq Khan, Advocate, the learned counsel for the accused-respondents strongly refuted the arguments advanced by the learned Additional Advocate-General. He submitted that the order passed by the learned Shariat Court is perfect and legal which does not warrant any interference by this Court. He submitted that politically motivated false cases have been registered against the accused-respondents without any evidence. He further submitted that no independent witness has been brought on the record to support the allegation levelled in the F.I.Rs. He contended that out of three F.I.Rs. Two have been lodged after delay of approximately 23 and 29 hours which shows that the same have been lodged after due deliberation. He further contended that the statements under Section 161, Cr.P.C., were also recorded at the belated stage for which no plausible explanation has been offered. He further contended that three different F.I.Rs. Of the same occurrence have been registered just to strengthen the case which is a clear male fide on the part of police. The police wants to humiliate the respondents who are political workers and belong to opposition party as one of the accused- respondent is son of the former Prime Minister of Azad Jammu and Kashmir and brother of a candidate for AJ&K Legislative Assembly. He argued that the only object of registration of cases is only to humiliate and create an illegal harassment which are the basic ingredients for exercising powers under Section 498, Cr.P.C. He contended that the accused appeared before the Police and joined the investigation and no recovery from the accused was made. He further argued that no recovery has been effected from the accused-respondents or no any other incriminating material has been brought on record against the accused-respondents. The learned Shariat Court rightly appreciated the material available on the record while granting the bail before arrest. He has relied upon the cases reported as Muhammad Miskeen v. Muhammad Ayub [1992 SCR 379], Sohrab Khan & another v. The State [2008 SCR 632] and Abdul Khaliq v. The State & another [2010 SCR 402].
6. We have heard the arguments advanced by the learned counsel for the parties and also perused the record alongwith the impugned order passed by the learned Shariat Court. This case pertains to three different F.I.Rs., which were registered regarding one and the same occurrence.
The perusal of F.I.R. No. 53 of 2011 shows that the same have been lodged at 2:00 p.m. On 28.06.2011 and the time of occurrence has been mentioned as 12:14 p.m. Whereas, F.I.R. No. 54 of 2011 has been lodged on 29.06.2011 at 12:15 p.m. After delay of 23 hours, Likewise F.I.R. No. 55 of 2011 has been lodged after delay of 29 hours approximately. The contents of all the F.I.Rs., shows that no specific role has been attributed to the accused-respondents. It is alleged in the F.I.Rs. That the accused- respondents attacked the Court building, set at fire the building in the result of which judicial record was burnt. During this occurrence, a number of police officials alongwith a judicial officer were injured. After cursory examination of the record, it reveals that at the time when the occurrence took place, uncounted persons were alleged to have committed the occurrence and no specific role has been assigned to any accused: The details of burnt property/record have not been provided in the F.I.Rs. The statements under Section 161, Cr.P.C., have also been recorded at a belated stage for which no plausible explanation has been brought on record. It is also admitted position that at the day when the occurrence took place, the general elections for Legislative Assembly were going to be held. It is claimed that one of the accused-respondents nominated in the F.I.Rs. Is son of the former Prime Minister of Azad Jammu and Kashmir and brother of a candidate for Azad Jammu and Kashmir legislative assembly from the constituency. It is alleged that they belong to Pakistan Muslim League (N) and false cases have been registered' against them on behest of Federal Government of Pakistan for harassment with male fide intention to give undue benefit to their political opponent. We are conscious that principles for granting bail before arrest and after arrest are quite different and preconditions for getting the extraordinary relief of pre-arrest bail are male fide and undue harassment. If these elements are available then bail can be granted. While keeping in our mind the elements prerequisite for consideration of bail before arrest, we are of the view that during the investigation the prosecution failed to collect any incriminating material against the accused-respondents and this fact has not been denied by the learned Additional Advocate-General even before this Court. The . Only submission has been made that the accused did not join the investigation. Whereas, the stance taken by the accused- respondents is that they joined the investigation and in this regard they also filed an affidavit and no rebuttal has come on the record. Therefore, the argument of the learned Additional Advocate- General in this regard is not supported by any document. In absence of that it should be presumed that the accused-respondents joined the investigation.
7. While meeting the argument regarding the entertainment of the bail application directly by the Shariat Court, it may be observed that the powers of the Superior Courts cannot be curtailed as the powers under Section 498, Cr.P.C., vested in the Shariat Court/High Court being concurrent with the subordinate Courts, can be invoked directly. Therefore, the argument in this regard has no force and the same is hereby repelled. Our this view finds support from a case reported as Ch. Zahur Ilahi, M.N.A. v. The State [PLD 1977 S.C. 273], wherein it has been observed that:--- "The argument however, ignores the fact, that in matters of bail, the powers of a High Court are manifold. On the original side, it has the power of Trial Court under Section 497, Cr.P.C. Under Section 498 ibid, it has powers as a superior Court, which are concurrent with those of the subordinate Courts. Then there are the powers of the High Court under Sections 435 and 439 as a Court of revision to decide questions of bail. All these powers are available to the High Court during the trial. Under Section 426, Cr.P.C., which is applicable to convicts, a High Court's powers are two- fold. Under sub-section (1), its powers are those of a Court of appeal, in seizing of the appeal. Sub- section (2) of that section confers on the High Court, concurrent powers with those of the subordinate Court before whom the appeal is pending. Thus, it will be seen, a High Court under Cr.P.C. Has variety of powers for the relevant purpose. Power exercisable under Section 498, Cr.P.C.
Being concurrent with the subordinate Court, can be invoked directly. In such a situation there is hardly any question of review."
8. The object of Section 498, Cr.P.C., is to protect the innocent persons from illegal harassment, political victimization and humiliation. If these elements are available in a case and the Court comes to the conclusion that the police wants to arrest a person only to defame and humiliate or blackmail him, the extraordinary jurisdiction can be exercised in his favour. Reference can be made to a case reported as Murad Khan v. Fazal-e-Subhan and another [PLD 1983 S.0 82], wherein it has been observed that:- "As already observed, it has been reiterated by this Court in earlier noted cases that the condition of arrest being for ulterior motives, for example, that of humiliation and unjustified harassment is a necessary condition from pre-arrest bail. It would not be out of place to notice another case Rao Qadeer Khan v. The State (PLD 1981 S.C. 93), wherein indiscriminate grant of anticipatory bail was commented upon as follows: "We are also in agreement with the learned Courts below that the conduct of the petitioner by making repeated applications for anticipatory bail, trying to ' gain advantage thereunder and then absenting for periods of time, amounted to abuse of the process of law and Court."
It has not been denied that there are other cases as well confirming the rule that one of the main considerations for grant of bail is whether the citizen's reputation and liberty. It is not necessary to notice all of them in this case but it would be of some practicable advantage to take note of few cases in addition to the ones already mentioned where the condition in question was kept in mind.
They are Muhammad Shafiq and another v. The State (1982 SCM R 384), Muhammad Azam and another v. The State (1980 SCM R 269) and Sardar Muhammad and others v. The State (1977 SCM R 326). In the case of Muhammad Shafiq although ground of mala fide on the part of the complainant in the case was asserted, this Court after examining the allegations and the nature of injuries involved in the case, observed that the High Court was right in saying that law should take its normal course and there was no justification for allowing pre-arrest bail." In the case of Muhammad Azam wherein this Court accepted an appeal, one of the allegations was that the accused were the victims of departmental intrigues and jealousies and the intended arrest was to harass and ridicule the accused with an ulterior motive to disgrace them through the process of being handcuffed". In the case of Sardar Muhammad also this Court allowed anticipatory bail even in a hurt case, where the allegation was that the accused were implicated out of malice because they were the office-bearers of the Pakistan National Alliance. It was further suggested that the accused was being victimised by the Government then in power, on account of they being the office-bearers of the opposition party and that the purpose of arrest was victimization and humiliation.
The forgoing resume of the case-law since 1949 and the recent trend of authority would show that notwithstanding varied facts, this Court always thought it necessary to look for such circumstances which would furnish the assumption that the police was motivated on political considerations or other ulterior reasons, before granting pre-arrest bail. In this case, with respect, it is pointed out that the learned Judge in the High Court failed to notice the principles discussed above. Learned counsel for the respondent remained unable to satisfy us with regard to the condition of mala fide of the intended arrest. It was, therefore, not a fit case for grant of anticipatory bail, though after arrest the petitioner would have been at liberty to urge the point on the basis of which the impugned order was passed."
While following the principle of law enunciated in the aforementioned case-law, the scope of bail before arrest was further discussed in a case reported as Muhammad Yunus and another v. Malik Muhammad Nawaz and 5 others [1997 S.C.R. 125], wherein in has been observed that:--- "12. Now we advert to the fundamental principles relating to the pre-arrest bail matters. In a famous reported case titled Murad Khan v. Fazal-e-Subhan [PLD 1983 SC 82] the necessary conditions for grant of pre-arrest bail have been laid down. One of the main considerations for the grant of bail is whether the prosecution is motivated by malice so as to cause irreparable injury to a citizen's reputation and liberty and there should be apprehension of harassment and undue humiliation by means of unjustified arrest. However in the case of Hidayat Ullah Khan v. Khushi Muhammad and Sadiq Ali [PLD 1981 Lah. 599] it was observed that "the Courts should strictly avoid the exercises of this power at random, which is likely to embarrass the prosecution in investigation as usually is the general complaint. The balance has to be kept and each case has to be dealt with on its own merits. The Court should seriously apply its mind before passing the order of pre-arrest bail. I must, however, make it clear that the Courts are the guardians of liberty, of citizens. The abuse of power by the police to rope in innocent persons in order to humiliate them and to cause irreparable loss to their reputation should be equally kept in view. Murad Khan's case was followed by this Court in a case titled Basharat Khan v. Sher Muhammad [Criminal Appeal No. 7 of 1992]. Thereafter in case Khurshid Ahmad v. Muhammad Ilyas and others and Zafar Iqbal v. The State [Criminal Appeals No. 5 and No. 9 of 1992 reported as 1994 SCR 136] it was observed at page 141 'We may also take note of the contention that, in any case, the pre-arrest-bail should not have been granted to the accused- respondents because the principles of law which govern the grant of anticipatory bail are vastly different from the principles applicable to after-arrest bail. He referred to Murad Khan v. Fazal-e- Subhan [PLD 1983 S.C. 82]. We have dealt with this point with some detail in Basharat Khan v. Sher Muhammad Khan [Crl. Appeal No. 7 of 1992] and have expressed the view that these principles are not inflexible and can be departed from in accordance with the facts of each case by keeping in view the gravity of the offence and other factors. We again want to emphasise that grant of pre- arrest bail should not be treated as a routine matter but having regard to the facts of the case we do not feel persuaded to cancel the bail on the mere ground that it is an anticipatory bail."
However, the only clog has been imposed by the Superior Courts that powers under Section 498, Cr.P.C., cannot be exercised in routine rather these can be exercised very sparingly in exceptional cases where element of mala fides was patent or even latent.
9. The main crux of the above discussion is that while exercising the powers under Section 498, Cr.P.C., arrest of a person for ulterior motives such as humiliation and unjustified harassment, was valid consideration for grant of pre-arrest bail. Reliance can be placed on a case reported as Basharat Khan and 7 others v. Sher Muhammad Khan [2000 SCR 278], wherein it has been observed that:- "We wish to emphasis that pre-arrest bail is not a routine matter. Anticipatory bail should be granted where it appears that the accused is being arrested for ulterior motives such as humiliation or unjustified harassm ent or -where the prosecution seems to be actuated with a motive to cause irreparable injury to feputation and liberty or that there are political considerations in the apprehended arrests. These are some of the reasons which may justify grant of pre-arrest bail. We do not wish to lay down any inflexible rule but the principle which should be followed is that discretion to grant such bail should be exercised on the basis of strong circumstances in favour of an accused person. Gravity of an offence may also be kept under consideration, for instance if a person is charged with an offence punishable with death or life imprisonment this principle may require a strict application. Before pre-arrest bail is granted the Court must address itself to the question whether strong circumstances in favour of an accused person exist in the case so as to entitle him to grant anticipatory bail."
Similar view has been taken in the case reported as Syed Muhammad Firdaus and others v. The State [2005 SCM R 784], wherein it has been held that:--- "27. Be that as it may, now it would be imperative to examine as to whether for grant of bail before arrest to the petitioners, principle laid down in the case of Sadiq Ali v. The State PLD 1966 SC 589, would be attracted or not, according to which "exercise of this power should, however, be confined to cases in which not only a good, prima facie, ground is made out for grant of bail in respect of and offence alleged but also it should be shown that if the petitioners 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 motives and with the object of injuring the petitioner, or that the petitioner would in such an eventually suffer an irreparable harm". This principle has been reiterated in the case of Meeran Bux v. The State PLD 1989 SC 347. In this behalf, it may be noted that in this case bail before arrest granted to an accused by the Sessions Judge was cancelled by the High Court in suo motu revisional jurisdiction on the premises that pre- requisite for bail before arrest i.e. Ulterior motive was not satisfactorily proved but this Court restored the order of Sessions Judge, taking into consideration that the accused remained on bail for a period of more than one year before cancellation of his bail and he did not abuse the concession in any manner. Reference in this behalf was also made to the case of Murad Khan v.
Fazal-e-Subhan and another PLD 1983 S.C.
82. Similarly in the case of Jamal-ud-Din v. The State 1985 SCM R 1949, this Court had laid down that "arrest for ulterior motives such as humiliation and unjustified harassm ent makes it valid consideration for grant of pre-arrest bail." (Underlining is ours)
10. After scanning the record made available, we are of the view that nothing could be said at this stage as to whether the accused-respondents acted independently or under the influence of the others. No specific role has been assigned to any of the accused. The same can only be judged after recording the evidence; the stage which has not come as yet. The argument of the learned Additional Advocate-General that prosecution wants to submit a supplementary challan against the accused-respondents itself shows that there is an element of illegal harassment. The learned Additional Advocate-General also failed to bring on record any material that the accused- respondents remained involved in such-like cases. Therefore, in our estimation, the matter requires further probe which makes the case as one of further inquiry, which is also one of a good prima facie ground for grant of pre-arrest bail in the alleged offences. A possibility of false implication on the ground of political motivation cannot be ruled out. In case the accused are handcuffed in the instant case, it will cause injury to the reputation and liberty of the persons nominated without attributing any specific role in the case. These are paramount considerations for seeking extraordinary relief of pre-arrest bail. Mere heinousness of the allegation cannot be made foundation to refuse the concession of bail if the accused have otherwise qualified themselves for grant of bail before arrest.
What has been discussed above we do not find any illegality or perversity in the order passed by the Shariat Court while exercising the powers under Section 498, Cr.P.C., as the order is based on cogent reasons. Thus, the revision petition having no force, stands dismissed.