MUHAMMAD TARIQ NADEEM, J.---Muhammad Zahid Amjad, the petitioner being accused in case FIR No.606, dated 01-04-2017 registered at Police Station Baghbanpura, District Lahore in respect of offence under sections 302, 148, 149, P.P.C. has sought pre-arrest bail on the grounds that he is innocent and has falsely been implicated in this case with mala fide intention and ulterior motive.
2. According to the contents of FIR, the complainant Rashid Butt was resident of brick kiln of one Ch. Jehad Shadipura, Village Mujahid Rayya Khas, Tehsil and District Narowal. On the fateful night i.e. 01-04-2017 at about 01:00 a.m. he in order to take his maternal uncle Abdul Rehman, Muhammad Aamil came at Bund Road, Punj Pir Stop and after picking them, when he reached near Punj Peer Darbar , in the meanwhile, his father Asad Ali came there and asked them that he is going to home, they should also accompany him, suddenly six unknown persons while armed with firearm weapons while riding on motorcycles, intercepted his father and started firing on him. One fire hit on the back side of the head of his father; second fire landed above the right ear and third fire hit on the left side of head; his father fell on the ground and the complainant as well as PWs ran away from the spot to save their lives. The accused persons while making aerial firing took to their heels. They could identify the accused persons if they confronted with them. They shifted injured Asad All to Mayo Hospital Lahore where he succumbed to the injuries. Hence, this FIR.
3. Tripartite arguments heard. Record perused.
4. After going through the FIR as well as evidentiary material collected by the police and presented before this Court, it divulged that earlier after thorough investigation, a report under section 173, Cr.P.C. as untraceable case was prepared on 25.09.2017. None of the accused person had been nominated in the FIR, however , according to the story of FIR as well as statements of PWs recorded under section 161, Cr.P.C. the A complainant and eye- witnesses claimed that they can identify the accused persons if they would come before them but as per documents available on record, Rashid Butt, complainant previously knew the petitioner because he (petitioner) was the complainant of case FIR No. 60/2010 dated 16-05-2010 under sections 302, 324, 148, 149, P.P.C., Police Station Rayya Khas, District Narowal wherein his father Asad Ali Butt, brothers Muhammad Nasir Butt, Baqir Butt and other relatives namely Waqas Butt, Waheed Butt, Shahid Butt, Amir Butt and Ayub Butt were accused. He remained alive till 02-082010, later on, he was statedly murdered by unknown persons and a criminal case FIR No. 174/2018 was registered at Police Statin Farooq Abad, District Sheikhupura. The complainant Rashid Butt never filed any complaint or recorded any statement against the petitioner .
5. There is another intriguing aspect of the case which cannot be lost sight off that after the murder of Rashid Butt complainant, the petitioner has been involved in this case on the written B application of Mst. Razia Bibi widow of Asad Ali, deceased on 08-07-2019, after the lapse of two years and three months of the occurrence, that she has a firm belief against the petitioner and his other co-accused that they have murdered her husband namely Asad Ali.
Subsequently , in support of that application one eye-witness namely Abdul Rehman also got recorded his supplementary statement in the same lines on 20-03-2020 with the delay of 03 years. It also manifests from the record that Mst. Razia Bibi is not eyewitness of the instant case and no source has been described by her qua the involvement of the petitioner in this case. More so, alleged eye-witness Abdul Rehman is also close relative of Razia Bibi as well as Muhammad Nasir Butt accused of case FIR No,60/2010, under sections 302, 324, 148, 149, P.P.C. Police Station Rayya Khas, District Narowal. He knew the petitioner very well from the very day of registration of instant FIR. According to the prosecution story , he could identify the assailants after seeing them, when the petitioner was already known to Abdul Rehman, PW then why he has not disclosed his name to jhe complainant of instant FIR at the time of occurrence. The complainant also knew the petitioner very well before the occurrence because the present petitioner is a complainant of case FIR No.60/2010 wherein Muhammad Nasir Butt son of above mentioned Mst. Razia Bibi and her close relative, after conclusion of the trial, were convicted and sentenced under sections 302, 148; 149, P.P.C. by the learned Additional Sessions Judge, Narowal vide judgment dated 29.09.2012. The appeal of supra mentioned accused was dismissed vide judgment dated 15.03.2017 passed by this Court with the alteration of death sentence of Muhammad Nasir into life imprisonment and now the jail petition is pending adjudication before the Hon'ble Supreme Court of Pakistan. Possibility cannot be ruled out that Mst. Razia Bibi widow of Asad Ali Butt has implicated the petitioner in this case just to put pressure for the compromise in the above-mentioned case.
The op-cit facts lead me to draw an inference that prima facie, the prosecution lacks sufficient incriminating material to connect the petitioner with the commission of alleged offence and chances of petitioner's false implication with deliberation after consultation cannot be ruled out. The mala fide and ulterior motive of complainant party and police is floating on the surface of record, presented before this Court. It has been well settled by now that mala fide can be gathered from the facts and circumstances of the case also. The concession of pre-arrest bail being an extra ordinary relief is to be granted to protect the innocent persons from the victimization and humiliation at the hands of police through abuse of law for ulterior motive. I fortify my view from the dictum laid down in case titled as "Khalil Ahmed Soomro v. The State" (PLD 2017 SC 730, wherein the following principle has been enunciated:- "Although for grant of pre-arrest bail one of the pre-conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideratio n. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide."
Likewise, in the case of "Shahzada Qaiser Arfat alias Qaiser v. The State and another" (PLD 2021 SC 708), the Apex Court of the country was pleased to observe as under:- "....The non-availability of incriminating material against the accused or non-existence of a sufficient ground including a valid purpose for making arrest of the accused person in a case by the investigating officer would as a corollary be a ground for admitting the accused to pre-arrest bail, and vice versa. Reluctance of the courts in admitting the accused persons to pre-arrest bail by treating such a relief as an extraordinary one without examining whether there is sufficient incriminating material available on record to connect the accused with the commission of the alleged offence and for what purpose his.arrest and detention is required during investigation or trial of the case, and their insistence only on showing mala fide on part of the complainant or the Police for granting pre-arrest bail does not appear to be correct, especially after recognition of the right to fair trial as a fundamental right under Article 10-A of Constitution of Pakistan, 1973. Protection against arbitrary arrest and detention is part of the right to liberty and fair trial. This Court has, in many cases, granted pre-arrest bail to accused persons after finding that there are no reasonable grounds for believing their involvement in the commission c f the alleged offence and has not required independent proof of mala fide on part of the Police or the complainant before granting such relief.
Despite non-availability of the incriminating material against the accused, his implication by the complainant and the insistence of the police to arrest him are the circumstances which by themselv es indicate the mala fide on part of the complainant and the Police, and the accused need not lead any other evidence to prove mala fide on their part.
6. Although, it is a pre-arrest bail applicat ion and merits for grant of bail before arrest and after arrest all altogether different but in a recent pronouncement of Apex Court of the Country in case titled as "Khair Muhammad and another v. The State through P. G. Punjab and another" (2C21 SCMR 130), the court can touch the merits of the case. The relevant por'ion of the esteemed judgment of the august Supreme Court of Pakistan is hereby reproduced for reference:- "...the concept of pre-arrest bail is exceptional, it has to be exercised sparingly . The purpose behind is to save innocent persons from false allegations, trumped up charges and malicious prosec ution at the end of complainant party . In the salutary judgment of this Court reported as "Meeran Bux v. The State and another" (PLD 1989 SC 347), the scope of the pre-arrest bail has been widened and as such while granting pre-arrest bail even the merits of the case can be touched upon...."
At present this Court is of the view that except the application submitted by Mst. Razia Bibi widow of Asad Ali and supplementary statement of Abdul Rehman, PW, no other incriminating evidence is available against the petitioner .
The material collected so far against the petitioner is based upon suspicion. The credibility of such like supplementary is to be seen by the learned trial court after having recourse to the evidence. Reliance is placed upon the cases law titled as "Syed Muhammad Firdaus and others v. The State" (2005 SCMR 784) wherein the Hon'able Supreme Court of Pakistan has observed as under:-- "...The evidentiary status of supplementary statements of the witnesses would be determined by the trial Court in the light of the law laid down by the Superior Courts but, prima facie , at this stage, their statements indicate that they had not furnished consistent evidence, therefore, prima facie to evaluate the situation, prevailing inside the ladies barrack, without appreciating the same in depth, their versions are required to be examined, particularly of those persons, who remained as hostages inside the barrack,...."
Reference can also be made from the case titled as "Lal Marjan and another v. Islam Gul and others" (2021 SCMR 301 ).
7. Even otherwise, if an accused person has a good case for post arrest bail then mere at the wish of complainant, he cannot be sent behind the bars for few days by dismissing his application for pre-arrest bail. Reference can be made to the case law titled as " Muhammad Aslam v . The State" ( 2000 YLR 1341 ).
8. The epitome of above discussion is that the petitioner Muhammad Zahid Amjad, has succeeded in making the case for the confirmation of the pre-arrest bail, hence, this petition is allowed and the ad interim pre-arrest bail already granted to the petitioner vide order dated 14-06-2021 is hereby confirmed subject to his furnishing of fresh bail bonds in the sum of Rs.500,000/- (Rupees five hundred thousand only) with two sureties, in the like amount to the satisfaction of the learned trial court.
9. It is, however , clarified that observations made herein above are just tentative in nature, strictly confined to the disposal of this bail petition and shall not prejudice the case of either side during trial.