MIRZA VIQAS RAUF, J. This petition under section 498 of the Code of Criminal Procedure, 1898 (hereinafter referred as "Cr.P.C") is for the grant of pre-arrest bail to Malik Usama Bin Tahir Awan, being accused in case FIR No.155 dated 10th May, 2021 offence under sections 279, 337-G, 427, 302 and 34 of the Pakistan Penal Code, 1860 (hereinafter referred as "P.P.C.") registered at Police Station City, Attock.
2. As per First Information Report lodged by Hussain Haider (complainant), on 10th May, 2021, at 09:00 p.m, when he was in his house, his friend namely Muhammad. Talha along with Abdullah Saleem came there at a motorcycle and asked him to accompany them to Dar-ul-Salam Colony.
Motorcycle was driven by Muhammad Talha whereas Hussain Haider sat behind him and Abdullah Saleem at the end. When they reached at Major Tahir Road at about 09:35 p.m., a white car in a very high speed emerged there, which hit them from behind. As a result, they all fell down and struck with the stairs of a house and got seriously injured. As per allegations, the driver fled away from the venue of occurrence.
3. After having heard learned counsel for the parties as well as learned Prosecutor, I have perused the record.
4. First Information Report was initially chalked out under sections 279, 337-G and 427 "P.P.C." against unknown accused. Muhammad Taiha, who was driving the motorcycle succumbed to the injures on the next day i.e. 1I.O5.2021 and as a result thereof, section 322, "P.P.C." was added. Later on, Abdullah Saleem got recorded his statement on 16.06.2021 before the Investigating Officer under section 161, "Cr.P.C" wherein he stated that in fact it was the petitioner, who while following them in the car, intentionally hit the motorcycle thrice at different points and ultimately while hitting the motorcycle from the back at the place of occurrence, fled away, which was done in furtherance of previous enmity. This resulted into substitution of section 322, "P.P.C." with sections 302, 324 and 34, "P.P.C.".
5. While having a cursory glance of the FIR, it appears to be a case of causing Qatle Khata (homicide by error) due to rash and negligent driving but after coming into picture by Abdullah Saleem injured, who recorded his statement on 16th June, 2021, the petitioner was confronted with an offence of Qatl-i-amd. In support thereof, the prosecution is also relying on a report of Federal Investigating Agency dated 20th August, 2021 with the plea that there was some previous interaction of petitioner with Abdullah Saleem through threatening messages.
6. There is no cavil that pre-arrest bail is an extraordinary relief, which is to be extended in rare and exceptional circumstances to the accused but at the same time, one cannot lose sight of the fact that liberty of a person is one of the paramount and inalienable right guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973, which cannot be abridged lightly. One of the prime purposes of pre-arrest bail is to prevent the mala fide prosecution of innocent persons. The term "mala fide" is not a uniformly identified term. It can be gathered from the attending circumstances. Being a state of mind, the term "mala fide" cannot always be proved through direct evidence, and it is often to be inferred from the facts and circumstances of the case. Reliance in this respect, can be placed on Shahzada Qaiser Arfat alias Qaiser v. The State and another' (PLD 2021 Suprem e Court 708). The relevant extract from the same is reproduced below: - "6. The power of the High Courts and the Courts of Sessions to grant pre-arrest bail, first and foremost, must be examined in the constitutional context of liberty, dignity, due process and fair trial. Pre-arrest bail is in the nature of a check on the police power to arrest a person. 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 investigating 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 fundamental right under Ankle 10A 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 of the alleged offences 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 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."
Same view was further reiterated by the Hon'ble Supreme Court of Pakistan in the case of "Khair Muhammad and another v. The State through P.G. Punjab and another" (2021 SCMR 130).
7. In order to examine the question as to whether prosecution in this case is tainted with mala fide, one can take notice of the fact that the occurrence was of night. The complainant, injured and the accused hails from the same vicinity and there could be no impediment in the way of complainant to identify the accused if he was recognized by Abdullah Saleem. The petitioner remained unidentified, as a result, FIR was lodged against unknown accused alleging that he has caused injuries to the driver and riders of the motorcycle through rash and negligent driving.
8. It seems that later on prosecution started introducing improvements so as to exaggerate the nature of offence by converting the case of Qatl-e-Khata (homicide by error) by rash and negligent driving into Qatl-i-amd. It is also note worthy that initially section 322, "P.P.C." was added instead of section 320, "P.P.C." despite the fact that the petitioner was having a valid license.
9. As per record, one Muhammad Tayyab was also accompanying complainant, deceased Muhammad Talha and injured Abdullah Saleem on the motorcycle initially but he left them in the way. His statement was recorded on 21st May, 2021, which is clearly contrary to the belated stance introduced by the complainant as well as Abdullah Saleem. It is though case of the prosecution that Abdullah Saleem was not in a position to record his statement being hospitalized in a precarious condition on the basis of a certificate issued by one of the doctor of Al-Shifa International Hospital, Islamabad but in view of discharge summary prepared by the same doctor, Abdullah- Saleem was discharged on 24th May, 2021. Strangely enough, said doctor was neither joined in the investigation nor his statement was recorded to the effect that Abdullah Saleem was never in a position to get record his statement. Prima facie above improvements in the case of prosecution were for no other purpose except to tighten the screw of the petitioner.
10. The involvement of the petitioner in the offence in the manner in which prosecution is lately asserting is not free from doubt. It is well settled principle of law that once Court reaches at the conclusion that in case of dismissal of pre-arrest bail the accused would become entitle for his release on post-arrest bail then it would be a mere futile exercise to send him to prison. Reliance in this respect, if needed, can be placed on "Muhammad Ramzan v. Zafar Ullah and another". (1986 SCMR 1380), "Khalil Ahmed Soomro and others v. The State" (PLD 2017 Suprem e Court 730) and Khair Muhammad and another v. The State through P.G. Punjab and another (2021 SCMR 130).
11. For the foregoing reasons, I am inclined to allow this petition. Resultantly ad-interim pre-arrest bail already granted to the petitioner namely Malik Usama Bin Tahir Awan is hereby confirmed subject to furnishing his bail bonds in the sum of Rs.1,00,000/- (Rs. One lac) with one surety in the like amount to the satisfaction of learned Trial Court.
12. Needless to observe that the observations made hereinabove are only tentative in their nature and are strictly confined to the extent of grant of instant bail.