Tariq Saleem Sheikh, J. Manzoor Ahmad (the Complainant) lodged FIR No.135/2021 dated 9.2.2021 with the Police Station Bhikhi, District Sheikhupura, under section 364 PPC (subsequently substituted with section 365 PPC) alleging that the Petitioner (Rafia Bibi alias Razia) and her co-accused had abducted his son Ali Ahmad and expressed an apprehension that they had murdered him. The Petitioner applied for pre-arrest bail in the Sessions Court which was allowed by the learned Additional Sessions Judge, Sheikhupura, vide order dated 31.5.2021. After about six weeks the Complainant move d that court for cancellation of her bail on the ground that credible incriminating evidence had been found regarding her involvement in the crime. The learned Additional Sessions Judge accepted that application vide order dated 6.9.2021 and cancelled her bail. The Petitioner has now approached this Court for pre-arrest bail.
2. The learned counsel for the Petitioner contends that the Petitioner is innocent and the Complainant has falsely implicated her in this case due to ulterio r motives. There is not an iota of evidence against her and the learned Additional Sessions Judge admitted her to pre-arrest bail on 31.5.2021 after considering all the aspects. The additional evidence on which her bail has been cancelled is concocted and untrustworthy .
3. The learned Deputy Prosecutor General assisted by the learned counsel for the Complainant has raised a preliminary objection that this bail applic ation is not maintainable inasmuch as revision lies against order dated 6.9.2021. On merits he submits that learned Additional Sessions Judge has rightly exercised his jurisdiction and the criticism against the aforesaid order is unjustified.
4. I first take up the objection regarding maintainability of this application for pre-arrest bail. The learned Law Officer is right that the Petitioner ought to have filed a revision petition against order dated 6.9.2021. In Muhammad Malik Pervez v . The State (1968 PCr .LJ 196) , the Hon'ble Supreme Court of Pakistan held: "Having heard the learned counsel we have no hesitation in coming to the conclusion that these applications for bail before arrest were wholly misconceived. His remedy if any, lay by way of revision from the orders of the Courts concerned cancelling his bails."
5. It is, however , well settled that the Supreme Court and the High Court are competent to convert one type of proceedings into another . In Liaqat Ali v. Bashiran Bibi and 9 othe rs (2005 CLC 11), a Division Bench of this Court held: "We would also like to observe that rules of procedure are intended to foster justice, technicalities, unless these offer insurmountable hurdles, cannot be permitted to operate as a tyrant master . And, to avoid failure of justice and multiplicity of litigation, one type of proceedings could be converted into another type of proceedings."
In Muhammad Akram v. DCO, Rahim Yar Khan and others (2017 SCMR 56), the Hon'ble Supreme Court of Pakistan held: "The Courts are sanctuaries of justice, and in exercise of authority to do ex debito justitiae , that is to say remedy a wrong and to suppress a mischief to which a litigant is entitled. No fetters or bar could be placed on the High Court and or this court to convert and treat one type of proceeding into another type into another and proceed to decide the matter either itself provided it has jurisdiction over the lis before it in exercise of another jurisdiction vested in the very court or may remit the lis to the competent authority/forum or court for decision on merits. Courts have been treating and/or converting appeals into revisions and vice versa and constit utional petitions into appeals or revisions and vice versa."
The above view was reaffirmed in Sher Alam Khan v. Abdul Munim and others (PLD 2018 SC 449), Commissioner of Income Tax (Legal) RTO, Abbottabad v. Messrs Ed-Zublin AG Germany and another (2020 SCMR 500), Muhammad Salman v. Naveed Anjum and others (2021 SCMR 1675 ) and Government of the Punjab and others v . Abdur Rehman and others (2022 SCMR 25).
6. In Javaid Iqbal and another v. The State [1998 Law Notes (Lahore) 659], this Court converted an application for pre-arrest bail into revision petition. Accordingly , I allow conversion of this case and direct the office to register it as Criminal Revision.
7. Perusal of the record shows that on 27.10.2008 the Petitioner married Ali Ahmad and they lived together for many years. On 9.1.2021 she filed a suit for dissolution of her marriage in the Family Court at Sheikhupura which was decided in her favour vide ex parte judgment and decree dated 10.3.2021. When the Complainant lodged FIR No. 135/2021 the said suit was pending. The learned Additional Sessions Judge admitted the Petitioner to pre- arrest bail vide order dated 31.5.2021 for three reasons: first, Ali Ahmad was missing but there was no evidence that he was dead. Secondly , there was no direct or circumstantial evidence regarding the Petitioner 's involvement in the offence - abduction and/or murder . Thirdly , it was but natural that the Complainant was offended by the Petitioner 's family suit so possibility could not be ruled out that he implicated her in revenge. Later (vide order dated 6.9.2021) the learned Judge was persuaded to cancel her bail when the prosecution collected 'evidence of the last seen' furnished by PWs Safarish Ali and Rani Bibi and three other witnesses, which included the Petitioner 's mother and two real brothers, appeared before the Investigating Officer and made statements that she had made extra-judicial confession before them.
8. It is trite that the considerations for the grant of bail and those for its cancellation are altogether different. In Sami Ullah and another v. Laiq Zada and another (2020 SCMR 1115) the Hon'ble Supreme Court of Pakistan held that the bail granted to an accused can be recalled in the following circumstances: i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice. ii) If the accused has misused the concession of bail in any manner . iii) If the accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses. iv) If the accused is likely to abscond. v) If the accused has attempted to interfere with the smooth course of investigation. vi) If the accused has misused his liberty while indulging into similar of fence. vii) If some new facts or material has been collected during the course of investigation with tends to establish guilt of the accused.
9. PWs Safarish Ali and Rani Bibi are husband and wife. In their statements recorded under section 161 Cr.P.C. they have stated that early in the morning on 26.10.2020 they were going for a walk when they saw the Petitioner , co-accused Muhammad Abbas and three others putting Ali Ahmad in a pick-up who was semi-conscious. According to them, when they inquired from the Petitioner she told them that he was not well and she was taking him to a hospital. These witnesses joined the investigation on 12.6.2021. There is no explanation why they kept mum for such a long time.
10. The Petitioner 's alleged extra-judicial confession before her mother (Rehmat Bibi) and brothers (Zafar Iqbal and Muhammad Ashraf) indeed raises eyebrows. It is, however , noticed that it was made jointly before them which bereaves it of all sanctity . It is also significant that these witnesses alleged that the Petitioner made the confession on 10.3.2021 but they reported it to the Investigating Officer on 12.6.2021. Again, there is no explanation for this delay .
11. Protection against arbitrary arrest and detention is part of the right to liberty and fair trial. In Shahzada Qaiser Arafat alias Qaiser v. The State and another (PLD 2021 SC 708) the Hon'ble Supreme Court held that there must be some incriminating material against an accused to justify his arrest. It added: "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 themselves indicate the mala fide on the part of the Complainant and the police, and the accused need not lead any other evidence to prove mala fide on their part."
12. In the present case, the additional evidence produced by the prosecution is not of such nature that the learned Additional Sessions Judge should have cancelled the Petitioner 's bail. Accordingly , this petition is accepted and the impugned order dated 6.9.2021 is set aside. The Petitioner shall submit fresh bail bonds in the sum of Rs.200,000/- (Rupees two hundred thousands) with two sureties in the like amount to the satisfaction of the learned trial court. The State v. Kamal Khan alias Maloo and another (1993 SCMR 1378 ); Zafar Iqbal and others v. The State (2006 SCMR 463); Shahid Hussain alias Multani v. The State and others (2011 SCMR 1673 ); Muhammad Anwar v. The State (2019 PCr.LJ Note 80); and Mst. Saira Bibi and others v. The State and others (2019 PCr.LJ 1363).