MALIK HAQ NAWAZ, J.---Since Cr. Misc. petitions Nos.128/2016 and 129/2016 are arising out of one and the same FIR, therefore, these are being disposed of by this single order.
2. The respondents were booked for the above offences vide FIR No, 04/2016 under sections 147/148/447/506(ii) and 337-A, P.P.C. registered at Police Station Nagar-I on 22.6.2016.
3. The brief facts of the case have exhaustively been mentioned by the learned trial Court in the impugned judgment dated. 18.08.2016. Precise facts are given below just for disposal of the instant petitions filed under section 497(5), Cr.P.C. As evident from the FIR in the month of May/June 2016 a dispute regarding sale/purchase of landed property of a relative of one of the respondent namely Askari Raza with the complainant of instant FIR No, 04/2016 erupted. One of the respondent namely Askari Raza filed a civil suit in the Court of Civil Judge Nagar alleging that the suit land is in his possession and as evident from the impugned order of learned Sessions Judge, status quo was ordered to be maintained by the learned Civil Judge. On 26.06.2016 as the story narrated in the FIR, is that the respondents launched an attack on the complainant and his companion and caused injuries to two of his nephews namely Ghulam Abbas and Naveed sustained injuries.
4. The respondent approached the Court of learned Sessions Judge Hunza for bail before arrest under section 498, Cr.P.C., which was allowed on 04.07.2016 and later on confirmed on 18.08.2016.
5. The complainant being aggrieved from the order of confirmation of bail before arrest has approached this Court for withdrawal of the bail facility granted to the respondents.
6. The learned counsel for the complainant/petitioner submitted at bar that the order of learned trial Court is not sustainable in the eyes of law as it runs counter to the principle laid down for grant of bail before arrest. The learned counsel further submitted that bail before arrest is an extra ordinary concession, which is allowed in very rare and exceptional circumstances but this fact went un-noticed and the trial Court under wrong assumption of law has granted bail before arrest to the respondents, which may be recalled in the larger interest of justice. The learned counsel submitted that some recoveries are to be effected from the accused/respondents and non- recovery of incriminating evidence will damage the case of prosecution.
7. On the other hand the learned counsel for the respondent submits that the occurrence took place all of a sudden and both the parties received injuries. Per learned counsel it was a sudden fight without any pre-meditation and the aggression by the either of the parties will be determined by the trial Court after recording of evidence. The learned counsel further stated that all these factors have been considered by the learned trial Court and the concession of bail before arrest has rightly been extended to the respondent which may be maintained in the given circumstances.
8. Having heard both the learned counsel of the parties and perusal of the case file with their able assistance it is admitted by both the learned counsel that a civil suit regarding the possession of disputed land was pending adjudication in the Court of learned Civil Judge Nagar-1. As evident from the contents of FIR, the complainant and his companions were working in the said suit land, when they were assaulted by the respondent. The claim of the respondent No,1 in the civil suit instituted in the Court of learned Civil Judge Nagar-1 is that the said suit land is in his possession. In such a situation it is yet to be determined by the trial Court as to which party was aggressor and which party was aggressed upon. The contention of learned counsel for the petitioner that bail before arrest is an extra ordinary concession, which is only extended in very rare and exceptional case is correct but at the same time now it is a well settled principle of law that no hard and fast rules could be laid down for grant of bail before arrest as each and every case has its own peculiar circumstances. The Courts are custodians of honor and liberty of the people and when the Court comes to the conclusion that the intended arrest is tainted with ulterior motive or where the culpability of an accused is doubtful or debatable and the offences are also not heinous, the exercise of discretion can validly be exercised in favor of an accused. In the instant case the respondents claim that the disputed land was in their possession and the complainant party trespassed and assaulted them and their reaction was justified against the undue aggression which will be thrashed at the time of trial by the trial Court.
9. The learned trial Court exercised the discretion in accordance with law and the judgment does not need any interference by this Court.
10. The result of above discussion is that the petition filed by the complainant under section 497(5), Cr.P.C., is dismissed being merit less.