YAHYA AFRIDI, J.---Syed Ishaq Shah petitioner seeks cancellation of pre-arrest bail granted to accused-respondent Shakir Shah son of Iqbal Shah by the Additional Sessions Judge, Mansehra camp Oghi vide order dated 4-7-2012, in case registered as case FIR No,22 dated 14-6-2012 for offences under section 436 of Pakistan Penal Code, 1860 ("P.P.C.") at Police Station Oghi, Tehsil Oghi District Mansehra ("FIR").
2. The brief and essential facts leading to the present petition are that the report of the present case was made by complainant Syed Ishaq Shah son of Syed Sakhi Shah to the local police on 4- 6-2012 that on the preceding night at about 10-30 p.m., he was sleeping in his house; that his younger daughter called him to inform that the cattle-shed was on fire; that he went to the spot and on his noise, his relatives and neighbourers arrived at the spot and took out the animals etc. From cattle-shed; and that he has no enmity with any person and on being satisfied, he would charge the culprit. Subsequently, certain articles were recovered from the spot and the present accused respondent was named in the supplementary statement of the petitioner and the case was registered.
3. Learned counsel for the petitioner argued that pre-arrest bail being extra ordinary concession, can only be granted in the cases where mala fide' on the part of the complainant or prosecution is visible on the face of the record; that there were reasonable grounds to believe that accused respondent was connected with the crime but even then without any 'mala fide' on the part of petitioner or the prosecution, the learned Additional Sessions Judge has extended the extra ordinary concession of pre-arrest bail in favour of the accused respondent Umar Dad; and that the accused respondent did not associate with the investigation and these aspects of the case were also ignored by the Sessions.
Conversely, learned counsel for the accused respondent contended that the case was fabricated by .The complainant for ulterior motives and nothing incriminating was recovered from the spot; that the grounds taken for grant of pre-arrest bail to the accused respondent by the learned Additional Sessions Judge were justified from the record of the case; and that once an accused is released on bail, then cancellation thereof would require strong and unexceptional grounds and reasons.
4. The valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
5. The grounds prevailed before the learned Sessions Judge, Mansehra for granting bail before arrest to respondent Shakir Shah and rendered in the impugned order read that:-- "Perusal of record would reveal that the complainant is not eyewitness of the occurrence. The occurrence is shown to be of 3-6-2012 while report was made on 4-6-2012 without showing any reason for delay in lodging the FIR. In the instant case FIR was registered after recording supplementary statement of the complainant which he originally recorded on 14-6-2012 before the local police as well as before the learned Judicial Magistrate under sections 161 and 164, Cr.P.C.
Complainant in the said supplementary statement has not disclosed any source of his information or satisfaction. There is even no eye-witness of the alleged occurrence. The local police have inspected the spot but did not collect anything in support of prosecution version. As no recovery memo. In this respect is available on file. So it is a case of further probe. Complainant has charged the accused in his. Supplementary statement on the basis of recovery of copy upon which name of the accused/petitioner was allegedly written. The said copy has also not been taken into possession by the local police. The question, that whether the said copy was left by the accused/petitioner, after commission of the alleged offence would be seen at the stage of trial after recording evidence. At this stage there is no convincing evidence which prima facie connect the accused/petitioner with the commission of the alleged offence or otherwise. In these circumstances this court is of the view that the accused/petitioner has made out a case for confirmation of pre-arrest bail.
Keeping in view of the above, the instant application is accepted and ad-interim pre-arrest earlier granted to the petitioner is confirmed on existing bail bonds. "
6. This court finds that the element of `mala fide' on the part of the complainant or the prosecution was totally ignored by the learned Sessions, while granting bail to the accused-respondent, which is 'sine qua non' for grant of pre-arrest bail. Thus, the grounds on which the extra ordinary concession of pre arrest bail was extended to the accused respondent are not legally justified for the said relief.
This Court seeks guidance from Rana Muhammad Arshad v. Muhammad Rafique (PLD 2009 SC 427), where in, the apex Court has rendered the guidelines for exercising the jurisdiction of the High Courts and the Courts of Session, for granting bail before arrest. It was observed that:-- "The said concept as it was initially propounded; as it developed and as the same stands today, may be summarized for the benefit of us all 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 disgrace and dishonor 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 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."
It was further held that:- "It has also been repeatedly held by the Superior Courts (reference be made to Zia-ul-Hassan's case supra) that no Court would have any power to grant pre-arrest bail unless all the conditions specified for allowing bail before arrest especially the condition regarding Mala fides were proved."
(emphasis provided)
7. This Court is alive to the principles governing recalling the grant of bail, which is completely different from those for refusing it. The grounds, which are required for recalling or cancelling a pre-arrest or post arrest bail already granted by a competent Court, are much harsher A and stringent than those of granting or refusing the same, The principle of cancellation can be equated to that of setting aside an acquittal order passed by a competent Court. Reliance may be placed on the judgment of the august Supreme Court in Muzaffar lqbal v. Muhammad Imran Aziz (2004 SCMR 231). The grounds, which are required for exercising such discretion, would include when the granting of bail is arbitrary, capricious, in complete disregard to the apparent evidence on the record.
8. In the present case, the material on record placed before this Court suggests that the present case warrants the recall of the pre-arrest bail granted by the Sessions. The impugned order is absolutely silent regarding the essential issue of `mala fide' and further that the accused- respondent has not associated with the investigation before confirmation of bail before arrest. The learned Sessions has ignored these two important factors in the impugned order, hence the impugned order is against the settled principles as discussed herein above.
9. Before parting, this Court finds it necessary to remind the trial court that the observations rendered by the High Court while disposing such applications are not to be considered during the trial of the accused. In this regard the august Supreme Court of Pakistan in Shuaib Mehmood Butt v. Iftekharul Haq (1996 SCMR. 1854) has rendered clear guidance, which is to the effect that:-- "However we would like to point out in no certain terms that the observations made by the High Court in the orders granting bail and by us in this order are confined to tentative assessment made for the purpose of disposal of bail applications and not intended to influence the mind of the trial Court, which is free to appraise the evidence strictly according to its merits and the law of the time of disposal of the case, which of course it is needless to say, is the function of the trial Court".
10. Accordingly, for the reasons stated hereinabove, this bail cancellation application is accepted and the concession of pre-arrest bail granted to accused respondent, Shakir Shah son of Iqbal Shah, by the Additional Sessions Judge, Mansehra camp Oghi vide order dated 4-7-2012 is set aside and recalled.
The above are the reasons for short order of this Court dated 22-2-2013.
The Office is directed to immediately send the record back for the present petitioner to avail his appropriate remedy of post-arrest bail, in accordance with law.