MUHAMMAD AAMIR NAWAZ RANA, J. The respondent No.1 Syed Murtaza son of Mir Hussain is nominated accused in FIR No.83/2022 lodged at Police Station Quaidabad Quetta on 19.05.2022 on the complaint of applicant/ complainant Syed Ali Akhtar son of Syed Sadiq for the offence punishable under section 324, P.P.C.
2. The accused (respondent No.1) had obtained pre-arrest bail by Additional Sessions Judge-X, Quetta (hereinafter "the trial Court") which was confirmed vide order dated 02.06.2022 (hereinafter "the impugned order"). Same has been impugned by the applicant/complainant through this application under section 497(5), Cr.P.C.
3. Necessary facts are that on 19.05.2022, the applicant/complainant reported that he is a student of 1st year; that on eventful day he was going to drop his friend namely All Akbar at Red Rose Marriage Hall near Masjid Wali Asar situated at Alamdar Road Quetta, when at about 03:00 pm the accused Syed Murtaza son of Mir Hussain, resident of Hazara Town, stopped him and started scuffling with him. According to complainant, people intervened and got him freed; that the accused Syed Murtaza ran towards his car and brought pistol and fired at him and the bullet hit his left leg due to which he fell down; that people present at the spot took him to the hospital.
4. Messrs Syed Ayaz Zahoor and Muhammad Akram Shah, Advocates appearing on behalf of the applicant contented that FIR was promptly lodged in which accused (respondent No. 1) was directly nominated; that since incident took place in the bright daylight so there is no issue with regard to identity of the accused; that since accused had committed a non-bailable offence and had attempted to cause fatal injury to the applicant, therefore the trial Court has committed error by entertaining the application for pre-arrest bail of the accused under section 498, Cr.P.C. In this regard learned counsel for the applicant relied upon Sheqab Muhammad v. The State 2020 SCMR 1486, Jahanzeb Khan v. Umer Zahid 2022 SCMR 726, Muhammad Baqir v. The State 2022 SCMR 363 and Syed Hamad Raza v. The State 2022 SCMR 640.
5. Mr. Fazal-ur-Rehman, learned State Counsel appearing on behalf of the State also supported the arguments rendered by learned counsel for the applicant and stated that the impugned order is not in accordance with law and same has been passed without any justification; that extra ordinary relief of bail before arrest has been granted to respondent No. 1, therefore the impugned order deserves to be recalled.
6. On the other hand, learned counsel for respondent No.1 refuted the allegations of the applicant and contended that section 324, P.P.C. is not attracted considering the facts and circumstances of the instant case; that the alleged bullet was not shot at the vital part; that since respondent No.1 has been granted pre-arrest bail by the trial Court on merits, therefore the scope of cancellation of bail under section 497(5), Cr.P.C. is entirely different as explained and dilated by this Court as well as by the Hon'ble Supreme Court. In this regard learned counsel for respondent No.1 relied upon Abdul Jabbar v. Sardar Khan Rind 2020 YLR 1077, Azra Bibi v. The State 2017 PCr.LJ Note 96, Muhammad Idress v. The State 2021 MLD 877, Meeran Bux v. The State PLD 1989 SC 347 and Samiullah v. Laiq Zada 2020 SCMR 1115.
Arguments heard. Record perused with the assistance of learned counsel for the parties.
7. The respondent No.1 is accused of causing fire arm injury resulting in distal femur fracture. Prima facie, this version of the applicant is supported by Medico Legal Certificate (MLC); further, the perusal of record reveals that the footage of CCTV, installed at the place of incident, also support the version of the applicant. The learned trial Court has granted bail before arrest under section 498, Cr. P. C. to respondent No.1 on the grounds which at pre-arrest bail stage should have been avoided considering the judgments passed by the Hon'ble Supreme Court. Reliance in this regard is being placed upon the case titled as Muhammad Nadeem v. Muhammad Khurram Jabal 2022 SCMR 1168, relevant portion whereof is reproduced herein below: ".............It is by now well settled that protection of pre-arrest bail is essentially a judicial protection to protect the innocent, being targeted through abuse of process of law for motives, oblique and sinister; it is neither a substitute for post arrest bail nor a treatment to be extended in every run of the mill criminal case. It is an option that warrants caution in its exercise, seemingly ignored by the High Court. Criminal Petition is converted into appeal and allowed; pre-arrest bail granted to the respondent is cancelled".
Emphasis provided.
In the same manner, while distinguishing the parameters of bail after arrest and bail before arrest, the Hon'ble Supreme Court, while dilating upon this difference, in the case titled as Muhammad Ismail v. The State 2022 SCMR 707 has observed: "..........It goes without saying that an accused of a cognizable offence scheduled as non-bailable " can only claim protection of anticipatory bail by reasonably demonstrating his intended arrest being contemplated by considerations mala fide and sinister, designed to abuse process of law. It is a judicial protection rooted into equity; whereas an accused in custody after completion of investigation can be released on bail on the touchstone of consideration statutorily enumerated in subsection (2) of section. 497 of the Code of Criminal Procedure, 1898, these two have no parallels.
For effective administration of criminal justice, it is most important that prosecution is allowed a meaningful opportunity to carry out and conclude the investigative process as apart from readily available evidence in the aftermaths of an incident it may lay hands upon incriminatory material that may possibly become available pursuant to disclosures in custody; this has been grievously ignored.
Similarly, an anticipated failure of prosecution, no matter how loudly clamoured, cannot be received to set its case at naught even before it is taken off".
8. Prima facie, tentative assessm ent of the available record manifests that the accused pointed pistol towards the applicant and pressed the trigger; whether 13 he had intention to kill or not is the question which can be determined by the trial Court but prima facie, an act has been committed causing homicidal injury. In this regard wisdom is obtained from the order passed by Hon'ble Supreme Court in the case titled as Sheqab Muhammad v. The State 2020 SCMR 1486, relevant portion whereof is reproduced herein below: "...............murderous assault as defined in the section ibid draws no anatomical distinction between vital or non-vital parts of human body. Once the triggered is pressed and the victim is effectively targeted, "intention or knowledge" as contemplated by the section ibid is manifested; the course of a bullet is not controlled or steered by assailant's choice nor can he claim any premium for a poor marksmanship".
9. In view of the judgments referred above and considering the facts and circumstances of this case in which extra ordinary relief of pre-arrest bail has been granted to respondent No. 1 probably on the grounds which are distinguishable from the recognized grounds of bail before arrest, therefore the order dated 02.06.2022 passed by Additional Sessions Judge-X, Quetta is not sustainable, same is set aside and pail granted to respondent No. 1 is recalled.
The observations made herein-above are purely tentative in nature, and same shall not affect merits of the case pending trial.