MANZOOR AHMAD MALIK, J.---Petitioners have called in question the order dated 30.10.2019 whereby pre- arrest bail was refused to them by the learned Lahore. High Court, Multan Bench, Multan in case FIR No. 191 dated 27.05.2019, offence under sections 324, 452, 354, 148, 149, P.P.C., registered at P.S. Sahuka, Burewala.
2. After hearing the learned counsel for the petitioners and learned Additional Prosecutor General, Punjab at length and perusal of available record, it has been observed by us that in the FIR 18 accused including the petitioners have been nominated by name along with 12 unknown persons. It is alleged in the FIR that the petitioners along with their co-accused while armed with their respective weapons came outside the house of the complainant; threatened them, of life and while resorting to aerial firing forcibly entered the house; Mehmood Khan raised a Lalkara whereupon petitioner No:7 Athar Farooq made a fire which hit on the right arm of complainant Muhammad Mumtaz; petitioner No.2 Mehmood Khan fired which hit the buffalo of complainant; when the mother of complainant Manzooran Bibi, his aunt Rasheedan Bibi, cousin Sonia Bibi and wife Khalida tried to rescue the complainant, petitioner No.1 Muhammad Jehangir Khan, petitioner No.4 Muhammad Iqbal, petitioner No. 3 Falak Sher, petitioner No.5 Muhammad Hanif and petitioner No.6 Rasheed inflicted blows with butts and Sotas on the person of aforesaid women, tore off their clothes and caused injuries to them; the other accused persons in the meanwhile made aerial firing hitting on the walls of the house. Thereafter, the accused persons decamped from the spot. The allegation against the petitioners prima facie gets support from the medical evidence inasmuch as in the MLC of complainant Muhammad Mumtaz, the doctor observed a firearm wound of entry on his arm; in the MLCs of Rasheedan Bibi, Khalida Bibi, Manzooran Bibi and Sonia Bibi, the doctor observed blunt weapon injuries. All the injured were medically examined on the same day i.e. day of occurrence, through police. Learned Additional Prosecutor General under instructions of the police officer present with record has stated that from the spot, 20 empties were taken into possession by the police and recoveries of weapons are yet to be made from the petitioners. He further states that during the course of investigation, the police has found the petitioners involved in this case. Learned counsel for the petitioners vehemently argued that injuries on the person of four women are simple in nature and the case of petitioners who are attributed those injuries is different from the others. In this respect, it has been observed by us that learned counsel for the petitioners has lost sight of the fact that prima facie provisions of sections 148/149, P.P.C. are attracted on the basis of material available on record and at this stage it is not desirable to bifurcate the roles of petitioners and their co-accused as it will amount to deeper appreciation of evidence, which exercise cannot be undertaken at this stage.
3. It has also been noted by us that at the time of hearing of the bail petition before the learned High Court, the petitioners absented themselves and even the counsel representing them was not present despite the fact that on the date prior to dismissal of bail petition, the case was adjourned on the request of learned counsel for the petitioners and petitioners were also present on that date i.e 29.10.2019. The relevant portion of the impugned order is reproduced herein below:- "Case has been called repeatedly but neither the petitioners nor their counsel have turned up before the Court.
Record further shows that yesterday i.e. 29.10.2019, Rana Abdul Ghaffar Advocate along with petitioners have appeared before the Court and matter was adjourned for tomorrow' i.e. 30.10.2019. This is a pre-arrest bail and personal appearance of the petitioners is mandatory."
In these circumstances, the petitioners are not entitled to the extraordinary concession of pre-arrest bail. The impugned order of learned High Court does not call for interference.
Following are the reasons of our short order of even date, which is reproduced herein below:- "For reasons to be recorded later, by majority of two to one (Sayyed Mazahar Ali Akbar Naqvi, J dissenting), the instant criminal petition being devoid of merit is dismissed and leave to appeal is refused."
Sd/- Manzoor Ahmad Malik, J Sd/- Amin-ud-Din Khan, J I have appended my own dissenting note.
Sd/- Sayyed Mazahar Ali Akbar Naqvi, J ORDER OF THE COURT By majority of two to one, the instant criminal petition is dismissed and leave to appeal is refused.
Sd/- Manzoor Ahmad Malik, J Sd/- Amin-ud-Din Khan, J Sd/- Sayyed Mazahar Ali Akbar Naqvi, J I have the privilege to read the bail refusing order authored by my learned brother Mr. Justice Manzoor Ahmad Malik concurred by Mr. Justice Amin-ud-Din Khan. With utmost respect, I disagree with the reasonings hence, render my own findings.
SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Petitioners have assailed jurisdiction of this Court under Article 185(3) of Islamic Republic of Pakistan, 1973 seeking leave to appeal against the order of Single Bench of Lahore High Court (Multan Bench) dated 30.10.2019 by which ad-interim bail granted vide order dated 14.10.2019 was recalled with a prayer to grant anticipatory bail to the petitioners in the interest of safe administration of criminal justice.
2. As per contents of the crime report bearing FIR No.191/2019 dated 27.05.2019, offences under sections 324, 452, 354, 148, 149, P.P.C. registered with Police Station Sahuka, Burewala, it is alleged that 18 accused duly mentioned while 12 unknown variously armed came to the house of complainant. They hurled threats of dire- consequences and thereafter resorted to indiscriminate firing. It is further alleged that they trespassed into the house of complainant. Mehmood Khan accused raised "lalkara" upon which Athar Farooq fired with pistol .30 bore hitting Muhammad Mumtaz on right arm whereas fire shot made by Mehmood Khan had hit on right leg of a buffalo. Women folk belonging to complainant, Manzooran Bibi, Rashidan Bibi, Sonia Bibi and Khalida Bibi attracted to spot to rescue, they were given beating as a consequence they suffered injuries, clothes worn by them were also alleged to have been torn which made them naked. Thereafter all the accused again indulged in aerial firing which had hit boundary walls and houses of the complainant party. The motive behind the occurrence is dispute over agricultural land.
3. The crux of the arguments advanced by learned counsel for the petitioners is that there is delay of 12 hours in lodging FIR for which no plausible explanation has been rendered. Contends that the story advanced by the prosecution is not convincing as it does not appeal to reason, rather it has been aggravated by the prosecution.
Allegation that 30 persons in furtherance of their common intention had attacked, however, only one person sustained single fire shot on non-vital part seems to be absurd, said injury was ultimately declared under section 337-F(iii), P.P.C., which entail maximum punishment for 3 years as per statue, whereas the rest of the PWs sustained simple injures which are bailable in nature. It is argued that the allegation of entering into the house of complainant was found false during the course of investigation and as such section 452, P.P.C. was deleted, which has not been challenged. It is further apprised that the accused party called in question the medico-legal report of firearm injury being a fabricated document. A petition in this regard was filed which was allowed.
Consequently medical board was constituted in pursuance of the order of Judicial Magistrate dated 14.06.2019.
The Medical Board summoned injured PW but he escaped appearance on 08.07.2019, 27.07.2019 and 01.08.2019. In this scenario possibility of fabrication as alleged by the accused party cannot be ruled out. The question of vicarious liability in the given circumstances has lost its sting too; hence, same would be resolved after recording of evidence before the learned trial court.
4. On the other hand, learned Additional Advocate General resisted the grant of pre-arrest bail on the ground that 20 empties were recovered and as such recovery of weapon has to be affected. It is a case of common object; therefore, each of them is vicariously liable for the act of others and the petitioners cannot be granted extra-ordinary relief, hence, prayed for its rejection.
5. This Court is conscious of the fact that concept of pre-arrest bail is an extra-ordinary relief, which is limited to rare cases based upon trumped-up charges rather it has to be extended sparingly. To avail such relief, it is obligatory to establish that the prosecution has been launched, which is based upon mala fides, ulterior motives and if it is materialized, it would certainly cause irreparable loss to his reputation. The practice to grant ad- interim bail is extension of such a remedy to act as a shield to protect innocent person facing highhandedness of individuals or authority against frivolous litigation. Literally speaking the term ad-interim is a misnomer as it has fallen in practice. It is worth mentioning that ad interim is not mentioned in any provision rather this idea has .been derived from the Order XXXIX, Rules 1 and 2 of Code of Civil Procedure, 1908 ("Code of 1908"). The rationale to grant ad-interim bail is though synonymous to passing a prohibitory injunction, however, the concept of ad-interim bail is more precious as compare to prohibitory injunction. In the former, liberty of the person is involved whereas in the latter, only propriety rights are in question. The status of .the accused becomes "custodia legis" during the period when ad-interim bail is granted till its final adjudication subject to furnishing of sureties to the satisfaction of the Court Reliance is placed upon judgment of Full Bench reported as Shabbir Ahmad v. The State (PLD 1981 Lahore 599).
The provision of section 497(2), Cr.P.C. confers powers upon the Court to grant bail during investigation, enquiry or trial subject to an opinion is formed by the Court that material placed before it is not sufficient to establish guilt and it still requires further inquiry into his guilt whereas section 498, Cr.P.C. deals with two situations:- i) The fixation of the amount or bond according to the circumstances; ii) Conferment of powers to grant bail to a person who is not in custody; Although the provision of section 498, Cr.P.C. is neither ancillary nor subsidiary to section 497, Cr.P.C. but is an independent Section, however, bare reading of language of subsection (2) of section 497, Cr.P.C. provide considerations for grant of bail by virtue of section 497(2), Cr.P.C. it practically merged sections 497/498, Cr.P.C. into one aspect qua concept of pre-arrest bail persuading it to act conjointly in all fairness. The practice for grant of extra-ordinary relief has passes through transitory period with divergent interpretation qua its scope since its inception, however, law is not static rather it is growing day by day. This Court while handing down a salutary judgment titled as "Meeran Bux v. The State and another" (PLD 1989 Supreme Court 347)' enunciated the concept of pre-arrest bail which was more innovative, liberal, crafted in consonance with the intent of legislature, hence, it has conceptually widened its scope in its entirety, elaborating its concept in the spirit of sections 497/498, Cr.P.C. It was reiterated in another judgment of this Court titled as "Syed Muhammad Firdaus and others v. The State" (2005 SCMR 784). This Court virtually introduced a broadened mechanism of interpretation to adjudge the element of mala fide or malice at the touch stone of merits of the case. In the said case, mentioned above, the accused who was ascribed the injury to the deceased on leg (simple in nature) was granted pre-arrest bail by Sessions Judge which was recalled by learned High Court while exercising suo-motu revisional jurisdiction, however, the order of learned Sessions Judge was restored by this Court while elaborating the principle in the above said terms.
6. Keeping in view the facts and circumstances narrated above, it has made it abundantly clear that while granting pre-arrest bail, Court can consider the merits of the case in addition to element of mala fides/ulterior motives which has to be adjudged in the light of law laid down by this Court in the case law stated supra. As a consequence, courts of law are under bounded duty to entertain broader interpretation of "law of bail" while interpreting material placed before it in more liberal manner to arrive at a conclusion which is badly required due to apparent downfall in the standard of investigation.
Otherwise liberty of a person is a precious right which has been guaranteed under the constitution of Islamic Republic of Pakistan, 1973. To abridge or curtail the liberty merely on the ground of being involved in a criminal case without adjudging it on merits would certainly encroached upon the right against free life. This right should not be infringed, rather it has to be protected by the act of Court otherwise it may frustrate the concept of safe administration of criminal justice.
7. The accumulative effect of the whole discussion and while seeking guidance from the above referred case law, this Court is of considered opinion that the petitioners have made out a case for grant of extraordinary relief of pre-arrest bail, hence are squarely entitled for the same. As a consequence this petition is converted into appeal and allowed accordingly.