Dost Muhammad Khan, J.--Both the petitioners are seeking leave to appeal against the impugned judgment of Islamabad High Court, Islamabad dated 1.8.2017. The petitioners were granted pre-arrest bail by the learned Additional Sessions. Judge Wdst, Islamabad vide order dated 15.05.2017, however, through the impugned order/judgment the same was recalled.
We have heard the learned counsel for the petitioners, Mian Abdul Rauf, Advocate General, Islamabad and the complainant in person, and have carefully gone through the impugned order as well as the materials available on record.
2. Crime report No, 109 dated 21.3.2016, registered' for offences under sections.302/324/452/34 PPC by Police Station Kohsar, Islamabad was made by the complainant, namely Chaudhry Hidayatullah, wherein he alleged that at the fateful time he was offering "Nawafil prayer" while his wife Mst. Razia, the deceased was present inside the house alongwith Mst. Saira, the maidservant, when two unknown young burglars (one male and one female) clad in "Burqa" entered the house and on gunpoint wanted to make hostage the inmates for securing nefarious designs however, on offering resistance by the deceased, she was fired at with a.30 bore pistol, as a result, the deceased was hit and fatally injured near her belly and the accused decamped from the spot. The report was made in the emergency ward of PIMS Hospital, Islamabad. The injured succumbed to the injuries in the hospital however, without conducting autopsy for no cogent reasons, she was buried and only a death certificate was issued by the hospital authorities.
3. It was on 21.10.2016 i,e, after seven months that the complainant recorded supplementary statement where, both the petitioners were charged for the crime.
4. When we asked the complainant, who himself was present in the Court who is a retired officer while his sons remained on high positions in different government institutions, that how he made up his mind and on what basis and tangible evidence/materials he reached the conclusion that the two petitioners were involved in the crime. The complainant and the learned Advocate General stated that in the instant case the matter was taken cognizance by the ISI which traced out that calls were made to one Nasir Ali, the driver of the deceased from cell phone numbers 0321-9520731 and 0345-4056433 on 11.03.2016 and 20.03.2016. Both, undeniably did not belong to the two petitioners however, a story was drawn that the SIMs were used in other cell phone and why it could not be tagged with the petitioners' cell phones registered in their names however, CDR data collected by the ISI has established this fact.
5. On Court query, the learned State counsel and the complainant stated that there is no other corroboratory evidence to connect the petitioners with the crime except the calls mode through SIMs which were inserted in cell-phones of other persons.
6. We see that a long drawn judgment has been delivered by the learned High Court of Islamabad while recalling the pre-arrest bail granted to the petitioners, almost discussing each and every fact, deeply on merits but at the same time has criticized the Trial Court that while granting bail, merits of the case were discussed.
7. This Court in the case of Khalid Javed Gillan v. The State (PLD 1978 SC 256) has laid down guiding and binding principles which may be cited as follows:--
(i) That while deciding bail petitions only tentative assessment of the material and facts available on record is to be made and deeper appreciation of the same shall be avoided;
(ii) that any fact which may not be sufficient to cast doubt of absolute nature on the prosecution case but equally sufficient to be considered for grant of bail, cannot be lightly ignored."
8. It is an admitted fact that the petitioner, lady Dr. Mst. Najeeba Sultan Bhatti is serving since long in "NORI Hospital", Islamabad. She was married to the son of the complainant, namely, Muhammad Farrukh on 6.9.2003. The couple lived a happy married life and during that period they were blessed with three children, one male and two female who are still toddlers / of tender age, however the marriage received a fatal jolt as differences between husband and wife went to the point of "no return" thus she was divorced on 11.6.2014 and then she married with the petitioner, Aamir Bashir on 17.04.2015 as is evident from "Nikkah Nama" available at Page 81.
9. In between this period, till the date of occurrence, litigations generated and suits and petitions were pending before the Family Courts for disposal with regard to the custody of children who are now in custody of the petitioner, Dr. Najeeba Sultan Bhatti.
10.The co-petitioner Aamir Bashir in Cr1. PLA No, 876 of 2017 was well known to the complainant as is evident from his complaint dated 17.09.2015 addressed to the authorities of PAEC against Dr. Najeeba Sultan petitioner who remained his daughter-in-law for many years however, it is strange that he could not identify them nor by the maidservant, allegedly present there.
11.The complainant decided to sit quiet and held a mysterious silence over the matter for long seven months. Similarly, the investigating agency too was clueless and could not trace out the real culprits because the impression, given in the story contained in the FIR, was that of an attempted decoity and it was after long seven months that he charged the two petitioners without furnishing any supporting materials much less evidence/proof.
12.True, that beside making out a prima-facie case, for grant of pre-arrest bail, accused petitioner has to show some malafide on the part of the complainant and the investigating agency, motivated by caprice and ulterior motive to humiliate and disgrace the accused person in case of arrest however, at bail stage, except in very rare cases, it is difficult for an accused person to furnish tangible proof about the element, of malafide or foul play on the part of the complainant or the arresting agencies therefore, the Court has to look at the materials available on record and to draw inferences there-from about the mala-fide or ulterior motive, on account of which the intended arrest of the accused is motivated 13.In the present case, there is a potential motive of malafide and malice because the petitioner, Dr. Najeeba Sultan was divorced by the son of the complainant at the time when she was having suckling baby and two other tender aged children. Due to pending litigation over the custody of children, the gulf of bitterness widened and reached at the peak, the legal battle turned into a hot oven. The complainant has shown extraordinary revengeful attitude by addressing a written complaint full of defamatory materials against the petitioner, Dr. Najeeba Sultan Bhatti, to the PAEC, available on record, which was dismissed by the authority after proper departmental inquiry.
14.The deceased lady, according to the available materials on record, is not shown to had played any contributory role in the divorce of the petitioner, therefore, in all probabilities she could not be and should not have been the prime target, if the subsequent story, set up after seven months to kill is looked into, rather the complainant and nobody else because of his revengeful attitude, he has displayed throughout, would have been done to death, if he was present there.
15.The powers and jurisdiction of the Sessions Court and the High Court to grant pre-arrest bail are co-extensive. The High Court does not act as an Appellate Court in such matters therefore, once pre-arrest bail is granted by Session Court for cogent reason, palpable on record then, the High Court has to show maximum restraints in re calling the same unless the bail granting order is shown to be absolutely perverse or has been granted -in disregard of the settled principles regulating the grant or refusal to grant such bail.
16.The plea of the Advocate General that the investigating agency has been deprived to interrogate both the petitioners for the recovery of the crime pistol and to collect further evidence after getting their custody, is not acceptable in the circumstances of the case. Moreover, this Court time and again has held that this could not be a ground for efusal of pre-arrest bail because the police has to use proper skills of in vestigatior, while interrogating the accused person, staying on pre-arrest bail. The interrogation inside the lockup of the police station or inside the police station would make a very little difference.
17.Before parting with this judgment we are constrained to observe and to express our displeasure over the taking of control of the investigation of this case and cognisance by the ISI, which is neither authorized nor mandated to conduct and control investigation in such nature of cases thus, that part of the investigation, conducted by the ISI is held entirely illegal and without lawful authority. Such phenomenon shall riot be repeated in future and in case such agency forcibly takes cognizance and control of 'investigation of such cases from the police, the same would be in clear violation of the provisions of law and the Constitution and the person/authority would expose itself to criminal prosecution under the Pakistan Penal Code.
18. As discussed above, albeit tentatively, both the petitioners namely, Dr. Najeeba Sultan Bhatti and Aamir Bashir have made out not only a prima facie case for grant of pre-arrest bail but also element of malafide, ill will and ulterior consideration for their arrest to humiliate and disgrace them, cannot be ruled out; the impugned judgment/ order of the High Court is therefore, not sustainable in law . and is set aside.
Accordingly, these petitions are converted into appeal and allowed and the petitioners are. granted pre-anest bail.
These are the detailed reasons for our short order of even date which is reproduced below:- "For the reasons to follow, petitioners are admitted to bail subject to surety in the sum of Rs, 200,000/- (two lac). It is informed that bail bond in said amount was already furnished and is intact before the learned trial Court. Needless to say, that the petitioners will remain associated with the inquiry/investigation and trial, in case of abuse or misuse of concession of bail the trial Court will cancel the bail.
Petitions are converted into appeal and allowed."