CH. ABDUL AZIZ, J. This is an application for bail before arrest on behalf of.Muhammad Fayyaz (petitioner) in case FIR No.403 dated 23.06.2018, under sections 302, 324, 148, 149, P.P.C. registered with Police Station Saddar Beroni, Rawalpindi.
2. The facts of prosecution case as can be culled from the crime report are to the effect that on 23.06.2018 at about 06:30 p.m. Azhar ud Din (complainant) was present in his house and attracted to the street after noticing hue and cry coming therefrom that he noticed the presence of Ghzanfar Bhatti, Raja Nazar , Raja Khuram, Ziafat and six unknown persons armed with different weapons and saw them coming towards his house while using abusive language; that the complainant raised alarm and asked his cousin, Sehar-ud-Din and Luqman for returning to their house as a consequence thereof both of them ran for their lives that Raja Khurra m (co-accused) fired shots from his 12 bore gun hitting Luqman on his back and right leg; that Ghazanfar Bhatti (co-accused) fired a straight AK-47 shot, which hit Sehar-ud-Din on his neck that the perpetrators resorted to indiscriminate firing, which besides creating terror and panic in the vicinity also caused injury to Mst. Nadia Israr .
3. Arguments heard. Record perused .
4. It unfolds from the tentative perusal of record that the case in hand, stands registered for an occurrence having taken place on 23.06.2018 at about 06:30 p.m., within the jurisdiction of P.S. Saddar Berooni, Rawalpindi. During this occurrence, in pursuance of an aggression launched by Raja Khurram and his co-accused, one Sehar-ud-Din lost his life whereas two others, namely , Luqman and Nadia received injuries. It is equally important to mention here that burden of committing this crime was rested upon the shoulders of four nominated and six unknown accused persons.
5. In the wake of above facts, it is notic ed that Muhammad Fayyaz (petitioner) was not nominated in the crime report. His name surfaced on record through the supplementary statement of complainant dated 23.06.2018, which was recorded shortly after the registra tion of FIR. After having perused the aforementioned supplementary statement, it is noticed that the petitioner along with five others, namely , Usman, Sohrab Khan, Touseef, Iqbal and Yaseen was implicated in the case with the allegation of raising Lalkara and resorting to firing, which remained ineffective. Though the statements of three other witnesses, namely , Mastan, Luqman (injured) and Kamal were recorded under section 161, Cr.P.C. on the following day i.e. 24.6.2018, however , the name of petitioner finds no mention therein. Though, learned counsel for the complainant as well as the learned Law Officer was confronted with this anomaly but they failed to respon d it in any manner . This is not the only shortcoming noticed by this Court rather it is further observed that though such statement was made almost immediately after the registration of FIR, however , even then Azhar-ud-Din (complainant) stated that "till today" he has been looking for the unknown perpetrators and now have acquired knowledge about their identity . The use of expression "till today" adversely reflects upon the supplementary statement and reasonably demonstrates that indeed it was recorded some days after the registration of FIR.
6. The dismissal of this application was vociferously urged by the prosecution on the ground of limited scope of pre- arrest bail. In this regard, it is observed that no doubt the criteria laid down for the grant of pre-arrest bail is stringent in nature but not to an extent whereby a court is precluded to exercise jurisdiction under section 498, Cr.P.C. even in cases where the innocence or false implication of an accused is patently reflected from the record.
This Court is not oblivious of the fact that though the provision of section 498 was enacted in Criminal Procedure Code, 1898 from its very inception, however , the concept of pre-arrest bail developed through necessary interpretation made by Hon'ble Full Bench of Lahore Court in case reported as Hidayat ullah Khan v. The Crown (PLD 1949 Lahore 21). From a peep through the judicial archives, it unveils that even prior to the aforementioned Full Bench decision, the Courts had been granting bail before arrest but such relief was much dependent upon the discretion of the court, without there being any specific guidelines. If any reference in this regard is needed that can be made to the cases reported as Emperor v. Muhammad Fandh AIR (21) 1934 Sind (36 Cr.P.C L J 711) and Johur Mat and others, 10 CWN 1093 (4 Cr.P.0 L J 221). The Hon'ble Full Bench of this Court in the case 'of Hadayat Ullah Khan (mentioned supra) while pondering upon the concept of pre-arrest bail made the law more explicit by laying down guidelines, which for reference sake are being reproduced hereunder:- "For the reasons given above, the reply which I would give to the question referred to us is that, in a proper case, the High Court has power under section 498, Criminal Procedure Code, to make an order that a person who is suspected of an offence for which he may be arrested by a police officer or a Court, shall be admitted to bail. The exercise of this power should, however , be confined to cases in which, not only is good prima facie ground made out for the grant of bail in respect of the offence alleged, but also, it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability , be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner , or that the petitioner would in such an eventuality suf fer irreparable harm."
It reasonably evinces from the observatio n of Hon'ble Full Bench of this Court, mentioned above that discretion to grant pre-arrest bail is to be exercised in favour of an accused, if his implication in the case is apparently stirred with mala fide and he has a good prima facie case for the grant of bail. The proposition of pre-arrest bail was authoritatively adjudged by this Court in another case reported as Sh. Zahoor Ahmad v. The State (PLD 1974 Lahore 256 ) with following observation:- "The main conditions to be satisfied before exercise of jurisdiction to allow pre-arrest bail under section 498, Cr.P.C. are--
(a) that there should be a genuine proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner;
(b) that the petitioner should physically surrender to the Court;
(c) that on account of ulterior motive, particularly on the part of the police, there should be apprehension of harassment and undue irreparable humiliation by means of unjustified arrest;
(d) that it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr .P.C. would have to be kept in mind;
(e) that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr .P.C."
In the case reported as Murad Khan v. Fazla-e-Subhan (PLD 1983 SC 82) the Hon'ble apex Court cancelled the pre-arrest bail granted to an accused by the High Court on the ground that his implication apparently was not based on mala fide. However , the scope of pre-arrest bail was widened by the Hon'ble Supreme Court of Pakistan in a subsequent case reported as Meeran Box v. The State and another (PLD 1989 SC 347) and besides mala fide, the merits of the case were also considered favourably for extending such relief. For advantage sake, it is being mentioned that in the wake of an accusation of having participated in homicide occurrence, the accused Meeran Bux was ascribed the role of inflicting a gunshot injury on the left thigh of deceased Badshah Dino and the pre-arrest bail granted to accused was cancelled by the High Court, however , the Hon'ble Supreme Court of Pakistan restored the bail granting order of learned Sessions Judge while observing that the injury besides not being on the vital part of the body was also declared by the doctor to be simple in nature.
7. From the above discussion, it reasonably insinuates that while deciding pre-arrest bail, the Court can have a look upon the merits of case though on the yardstick of tentative assessment. The application of such rule in the instant case reveals that implication of petitioner , in the circumstances mentioned above, is not free from doubt, Even otherwise, the petitioner is ascribed the role of resorting to ineffective firing. Admittedly , as per accusations, neither petitioner caused any injury to the victims nor made any attempt to do so. This aspect, itself is sufficient to lean in favour of petitioner for granting pre-arrest bail. In arriving at such conclusion, this Court sought guidance from cases reported as Nazra and 5 others v. The State (1977 PCr.LJ 480), Ashraf and 3 others v. The State (1978 PCr.LJ 903), Arshad v.The State (1999 PCr.LJ 611) and Muhammad Tariq and another v. The State (2008 YLR 22). The grant of pre-arrest bail to petitioner is further felt inevitable keeping in view the fact that main accused Khurram was exonerated by Mastan Khan (father of Luqman- injured) from all charges at the time of his pre-arrest bail, though he was saddled with the responsibility of causing multiple firearm injury to Luqman.
8. This Court has also taken note of the fact that Ziafat Mehmood (co-accused) was nominated in the crime report with the role of making E ineffective firing, however , was granted post-arrest bail by this Court vide order dared 04.12.2018 in Cr1. Misc. No. 1657-B/201 8. Similarly , Usman Mehboob, who was also arrayed as accused through the supplementary statement of the complainant with role similar to petitioner , was also held entitled to post-arrest bail by the learned Additional Sessions Judge, Rawalpindi vide order dated 16.4.2019. In the given circumstances, even if the request of petitioner for grant of pre-arrest bail is refused on the ground of its limited scope, he will become entitled to bail under section 497, Cr.P.C. immediately after his arrest. In the given circumstances, except causing humiliation and E harassment to petitioner no useful purpose is likely to be served. In somewhat similar circumstances, the concession of pre-arrest bail was granted in cases reported as Miss Zubaida Parveen v. State (2004 MLD 1812 ) and Zahoor Ahmad alias Bhawal Sher and another v. State (2007 PCr.LJ 1161). So far as, implication of the petitioner in the case on account of mala fide and ulterior motive is concerned, it is well evident from the manner in which supplementar y statement of complainant, apparently , was inserted in the record. In accordance with the peculiar facts of the ease, this Court prima facie has reasons to believe that petitioner fell prey to the wider net. This Court has also given a considered thought to the expected recovery of incriminating articles from petitioner . Suffice it to say in this regard that if the Court arrives at conclusion that person seeking pre-arrest bail is apparently falsely implicated in the case, his liberty cannot be curtained solely on the G ground that some recoveries are to be effected from him. It will not be out of context to refer the observation of Hon'ble Supreme Court of Pakistan, expressed in case reported as Aamir Bashir and another v. State and another (2017 SCMR 2060 ), in somewhat similar circumstances, which is as under:- "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 refusal of pre-arrest bail because the police has to use proper skills of investigation 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 dif ference."
9. For what has been discussed above, the instant petition is allowed and ad-interim pre-arrest bail already granted to the petitioner in terms of order of this Court dated 25.06.2019 stands confirmed subject to his furnishing fresh bail bonds in the sum of Rs.2,00,000/- (rupees two hundred thousand) with two sureties each in the like amount to the satisfaction of trial court.