' FAROOQ ALI CHANNA , J.---Through this Bail Application the applicant Khalid Ahmed Khan Lund seeks pre-arrest bail as he apprehends his arrest with ulterior motives at the hands of police in F.I.R.
No. 80 of 2013 at Police Station Ubaro, District Ghotki, lodged by complainant Muhammad Islamul Haque Arain, IInd Civil Judge and Judicial Magistrate, Ubaro that he was appointed as Assistant Returning Officer for constituencies NA-200 and PS-7 to conduct the general election scheduled on 11-5-2013. Mr. Qadir Bakhsh Lohrani, Additional District and Sessions Judge was the Returning Officer. Applicant Khalid Ahmed Khan Lund was one of the contesting candidates for NA-200 whereas Shaheryar Shar and Abdul Khaliq Samejo were the contesting candidates for the seats of Provincial Assembly, P.S. 5 and P.S.
7. They could not succeed the election, such preliminary results were announced on 12-5-2013, consolidations whereof were made on 13-5-2013. It is further alleged that on 14-5-2013 complainant Isamul Haq Arain and Mr.Muhammad Sharif Buriro, Senior Civil Judge, Ubauro along with Court staff were performing their official duties and conducting the judicial proceedings when at about 10.30 hours they were informed by the Court staff and the police personnel deployed in Court premises that some persons duly armed with weapons have entered in Court premises, they are also calling other people saying that the Judges are available in Court. The complainant ordered the police to oust the said persons. In the meanwhile about 2000 to 3000 armed persons encircled the Court building and directed the advocates and the litigant public to exit from the Court premises saying that they will kill the Judges, set the Court building and the record on fire, they shall also get the results of election changed. Both the Judges and their staff on hearing such commotion and threatening slogans ran away from Court premises and by scaling the walls took shelter in the houses of neighbors. The Court staff also took shelter in the old Court building. Some of the persons came at the houses of neighbors and started firing, the ladies entreaties them in the name of Almighty Allah and told them that the Judges are not there. Some of the persons ruthlessly beaten Muhammad Ishaq advocate, Allah Dino advocate, Muhammad Mubarak Malik, advocate and snatched their valuables. Meanwhile S.H.O., Police Station Ubauro, SSP Ghotki along with their staff and Rangers personnels came and rescued them and controlled the riot which continued for three hours. It is further alleged that Shaheryar Khan Shar was leading the procession of 33 persons named in the F.I.R. And 2000 to 3000 unknown persons, such news was telecast on electronic media which spread fear throughout the country. It is further alleged that Muhammad Ishaq Abbasi, advocate informed the complainant that Khalid Khan Lund (present applicant) and Shaheryar Shar the runner ups candidates in collusion and connivance with each other and under some conspiracy arranged the procession and sent the armed persons to cause loss to government's Court building, burn the election record, change the election results and attack upon the Judges in order to commit their murder which act comes within the meaning of terrorism.
2. Mr. Zamir Ghumro, Advocate while arguing the matter has referred to the cases of (Imam Bux alias Amoo and another) PLD 2012 Sindh 212 and (Sheroo and others v. The State) (sic) YLR 1383, authored by one of us (Mr. Muhammad Ali Mazhar, J) and has contended that in the above cited cases the bail was granted to the applicants observing that the names of the applicants were not mentioned in the F.I.R. And the police party had mentioned in the F.I.R. They can identify the said persons if see again. The above cited cases are not applicable to the instant case as in the aforesaid cases besides the plea taken by the learned Counsel for the applicant, the bail was granted to the accused persons as their names were disclosed by the police witnesses in their statements under section 161, Cr.P.C. Recorded after two days of lodging of F.I.R. Though the features and description of the accused persons were not disclosed in the F.I.R. Their identification test was also not conducted before the Magistrate. Learned counsel has further relied upon cases of (Muhammad Saleem v. State) 1999 Pakistan Cr. Law Journal 1315, (Muhammad Arshad v. State)
2012 Pakistan Cr. Law Journal 11-81, and (Ahmed Sharif and others v. The State) 2012 Pakistan Cr. Law Journal 882. All the above cited cases bears different facts and circumstances as that of this case therefore the said citations are distinguishable. Learned counsel has further contended that the applicant is a respectable citizen of the locality, he was elected MNA from N.A-200 three times and also held the office of Federal Minister. If he is arrested in this politically motivated false case, he will loose his dignity and reputation in the society. Learned counsel has further contended that admittedly the applicant was not present at the place of scene nor there is evidence of conspiracy or meeting of mind prior to the commission of offence. The police under the influence and at the behest of rival political ruling party has managed this false case against the applicant without any iota of evidence. Learned Counsel has further contended that as per F.I.R. P.W Muhammad Ishaq Abbasi, advocate disclosed to the complainant that the procession was arranged and people were sent by the applicant but the said PW in his statement under section 161 Cr.P.C. Has categorically stated that he had not seen the applicant Khalid Khan Lund at the place of incident as such the case is of further inquiry.
3. Conversely, learned A.P.G. Has vehemently opposed the grant of bail and has contended that the name of applicant appears in the F.I.R. With specific role of sending the protestors to attack upon the Judicial Officers and the Court Staff so as to get the election results changed in his favour.
Learned A.P.G. Has further contended that the above incident has taken place at the instance of applicant, which create terror and havoc in the society, as such the applicant is equally responsible and liable to be punished for the commission of above offence, which comes within the ambit of terrorism. Any lenient view shall give rise to such type of offences which creates havoc and keep the society under fear/threat. Learned A.P.G. Has further contended that as per prosecution case the procession was headed by Shaheryar Shar, the runner-up candidate of Provincial Assembly seat and Nazeer Ahmed Khan Lund, the brother of applicant which relation is sufficient evidence to show that the above incident has taken place under the instructions of applicant. In these circumstances, according to learned A.P.G. No case for pre-arrest bail is made out, hence the bail application is liable to be dismissed.
4. We have heard the arguments and perused the record. Before proceeding ahead, we are clear in our minds that the attack upon the judges and other public servants performing their official duties who saved their lives by scaling the walls took shelter in the houses of neighbors, causing the destruction of the Court building and its record is an extreme act of terror punishable under section 7 of Anti-Terrorism Act and the persons involved in such offenses deserve no leniency if tangible evidence is collected during the investigation. However, the case of present applicant is on different footing as that of co-accused persons who have been nominated in F.I.R. With specific role of taking part in the commission of offence as alleged in the F.I.R. As per the contents of F.I.R.
The sole allegation against the applicant is that one Mohammad Ishaque Abbasi, Advocate informed the complainant and Court staff that the protestors were sent by Khalid Khan Lund, as such at the most, the case against the applicant will, be of abetement, punishable under section 109 P.P.C. It is very easy to setup an acquisition of abetement, instigation and conspiracy against any person, however, to prove the said acquisition, it is obligatory upon the prosecution to collect and produce strong and inspiring evidence. In this case no detail of hatching conspiracy of the applicant is mentioned in the F.I.R. Nor the names of the persons before whom conspiracy was hatched discovered during the investigation. The contents of F.I.R. Reflects that complainant was not aware of any conspiracy being hatched for the commission of offence and he was informed by PW Muhammad Ishaque Abbasi Advocate that the protestors were sent by the applicant Khalid Khan Lund, but he did not disclose to the complainant the source of his information. It is pertinent to point out that the applicant along with five co-accused persons was allowed interim bail in Special Case No.17/2013 by the learned Special Judge ATC Sukkur, however, vide order dated 6th September, 2013, the bail order was recalled with the observation that the names of the applicants have been mentioned in the F.I.R. With specific role that they were present along with the mob, instigated and attacked upon the court premises. The above observations are contrary to the facts set up in the F.I.R. And the learned special judge while discussing the role or names of other persons failed to distinguish the case of present applicant whose name is not mentioned with any role except abetment in the commission of alleged offence.
5. At this juncture, we would like to point out that extra-ordinary relief of pre-arrest bail is meant for innocent persons to save them from humiliation and disgrace from the hands of police. The purpose of this remedy is to protect liberty and reputation of citizens, particularly in a case where the circumstances, in which the case seems to be a case of further inquiry on the basis of material placed before the Court. The power to grant bail under section 498, Cr.P.C. Is not additional to or independent to section 497, Cr.P.C., and even while granting pre-arrest bail the provisions contained under section 497, Cr.P.C. Are also to be kept in mind. However, the grant of bail or its refusal is essentially a matter of discretion to be exercised judiciously and not arbitrarily and the facts of each and every case is to be considered separately and independently. Reasonable and plausible ground must exist for grant of bail before arrest. The concept of pre-arrest bail was developed on three presumptions, firstly the accused is presumed to be innocent till he is found guilty, secondly the accused should have a right to prepare his defence and prove his innocence before the trial Court and thirdly the accused should not be punished before the findings of his conviction rendered by the Court. As we have observed earlier that the allegation against the applicant is that on his instigation or abatement the attack was made on the Court premises. So we have no hesitation in our mind to hold that the charge against the present applicant has direct nexus and germane to the main offence and the result of the case and unless the matter is tried by the competent Court to ascertain the guilt of the main accused persons the charge of abatement cannot be proved.
6. Besides above, it is also seen in many cases that usually the bail is granted in the identical cases except the cases of exceptional circumstances, to the accused who at the time of incident were seen present at the spot and facing the charge of abetting/committing the offence, then in our view there appears no reason to decline the bail to a person who admittedly at the time of incident was not present at spot. Keeping in view the facts and circumstances of the case and material placed on record, we are confident that the applicant has made out a case of further inquiry and deserves confirmation of interim pre-arrest bail.
7. For the reasons stated hereinabove, we confirm the interim pre-arrest bail, already granted to the applicant on the same terms and conditions. The above observations are tentative in nature, which shall not prejudice the case of either side on merits nor the trial court shall be influenced by the above tentative assessm ent.