NAEEM AKHTAR AFGHAN, J.---In the instant application, the following relief has been claimed by the applicants: "It is, therefore, in view of the above submissions and circumstances, respectfully prayed that this Hon'ble court may graciously be pleased to set aside the order dated 24.4.2019 passed by Special Judge Anti-Terrorism Court-I Quetta by accepting the instant application and in consequence thereof, sent the private respondent/accused behind the bars, in the interest of justice, equity and fair play".
2. After hearing learned counsel for the applicants, we have perused the available record which reveals that FIR No.115/2010 was lodged with Police Station Sariab on 5th July 2010 by applicant No.1 under sections 302, 324, 34, P.P.C. read with section 7 of Anti-Terrorism act, 1997 against unknown accused with the allegation that in the evening of the occurrence three unknown accused while riding on a motorcycle came and made firing upon Mir Muhammad Nawaz with pistols; that when Saadullah and Zahoor Ahmed went ahead to save Mir Muhammad Nawaz, the three unknown accused also made firing upon them and while making indiscriminate firing, the three unknown accused succeeded in fleeing away.
It was further reported that due to indiscriminate firing made by unknown accused Mir Muhammad Nawaz, Saadullah, Zahoor Ahmed and one passerby child Nauroz Khan became severely injured; that Mir Muhammad Nawaz and the minor passerby Nauroz Khan succumbed to the injuries.
It was further stated in FIR that unknown accused have committed murder of Mir Muhammad Nawaz and passerby Nauroz and have caused firearm injuries to Saadullah and Zahoor Ahmed for unknown reason.
3. Record reveals that the complainant made a supplementary statement on 6th July 2010 by improving version of the occurrence with the statement that from one side of the road three unknown persons riding on a motorcycle appeared and they made firing while on the other side of the road a black color Prado vehicle appeared wherefrom 6/7 got down and they also made firing due to which Mir Muhammad Nawaz became-severely injured and succumbed to the injuries while Saadullah and Zahoor Ahmed who had sustained bullet injuries were shifted to the hospital.
It was further alleged in the supplementary statement by applicant No.1 that in his FIR he had mentioned that 6/7 persons got down from black Prado vehicle but same was not incorporated in FIR.
4. In his supplementary statement, the applicant stated that those 6/7 persons who had made firing were identified by him as Sardar Yar Muhammad Rind, Sardar Khan son of Sardar Yar Muhammad, Sardar Sher Muhammad, Nasir Hussain and Sabzal.
5. It reveals that incomplete Challan No.59/2011 was submitted on 23rd June 2011, wherein respondent and co-accused nominated in supplementary statement were shown absconders.
6. Due to availing of bail by co-accused supplementary Challans were submitted on 8th May 2016 and 14th May 2019.
7. Record reveals that on 25th June 2018 respondent surrendered before Special Judge Anti- Terrorism Court-I Quetta (hereinafter "the trial Court") for grant of pre-arrest bail. The respondent was granted ad-interim pre-arrest bail by the trial Court vide order dated 25th June, 2018.
8. The ad-interim pre-arrest bail of respondent has been confirmed by the, trial Court vide order dated 24th April 2019 against which the instant application has been filed on the ground that in view of long standing abscondence, the respondent was not entitled for grant of pre-arrest bail and on the ground that respondent has been granted pre-arrest bail in wrong exercise of discretion by the trial Court.
9. There is nothing on record to show that the respondent was aware about his implication on the basis of supplementary statement of the applicant.
Since the applicant was not nominated in the FIR with any role of whatsoever nature and he was subsequently implicated by the complainant in supplementary statement dated 6th July 2010 with improved version of the occurrence, hence in such circumstances the grant of pre-arrest bail to the respondent No.1 by the trial Court cannot be termed as wrong exercise of discretion.
The trial Court has given valid reasons for confirmation of ad interim pre-arrest bail of respondent.
10. The scope of pre-arrest bail was widened in Jamal-ud-Din's case 1983 SC MR page-1949, wherein Hon'ble Supreme Court reiterated the principles for grant of pre-arrest bail and also held that the grant or refusal of bail in criminal cases primarily depends upon the facts and circumstances of each case and no hard and fast rule can be laid down in this regard.
Similarly, in the case of Meeran Bux v. State PLD 1989 Supreme Court 347, the cancellation of bail before arrest of the appellant by the High Court was set aside and the order passed by learned Sessions Judge granting pre-arrest bail to the appellant on the ground of further inquiry was restored by the Hon'ble Supreme Court and it was held as follows: "Apart from this we find that the Sessions Judge granted the pre-arrest bail to the appellant after considering the merits of the case inasmuch as he inter alia observed that the injury alleged to have been caused by the appellant to the leg of the deceased by guns-hot was according to the post-mortem note, neither fatal nor was caused on the vital part of the body and was declared to be simple and that it was a case of further inquiry so far as the appellant is concerned ....
Since the appellant remained on bail for more than one year before the bail was cancelled by the, High Court without abusing the concession of bail in any manner and the reason given by the learned Sessions Judge for granting pre-arrest bail that the injury was on non-vital part of the body of the deceased i.e. thigh and was simple, was not without foundation, we would, therefore, in the circumstances, set aside the impugned order of the High Court and restore the order of the Sessions Judge granting the pre-arrest bail"
11. In view of the dictum laid down by the Hon'ble Supreme Court, the confirmation of the ad-interim pre-arrest bail of the respondents by the learned Special Judge in view of the scope of further inquiry cannot be termed as illegal or in wrong exercise of discretion as apart from mala fide and arrest for ulterior motives such as humiliation and unjustified harassment, the scope of further inquiry can also be made a basis for grant/confirmation of pre-arrest bail, primarily depending upon the facts and circumstances of each case.
The allegation of abusing or misusing the concession of bail by the respondents is not supported by affidavit of any witness.
For the above reasons, the application is dismissed in limine.