1. This order will govern the disposal of Cr.B.A. No. 113/85 and Cr.B.A. No. 143/85. In both these cases the accused have applied for bail before arrest. The application is opposed by the learned Asstt. A.-G. And it is contended that bail before arrest could only be granted in cases where the apprehended arrest is on account of some ulterior motives and the person likely to be arrested will suffer irreparable injury by such arrest.
2. The powers of the Court to grant anticipatory bail in a case registered against an accused has been subject of decision in large number of cases and it is by now well-settled law that bail before arrest could be granted only in those cases where it is proved that the arrest is apprehended on account of ulterior motives particularly on the part of the police which would cause undue harassment and irreparable humiliation on account of unjustified arrest. In addition to it the applicant applying for anticipatory bail must also show on merit that a case has been made out for exercise of discretion for granting him bail keeping in view the provisions of section 497, Cr.P.C. I will refer herein some of the cases in which the principle for grant and refusal of anticipatory bail has been discussed in detail. In Sh. Zahoor Ahmed v. The State PLD 1974 Lah. 256 bail before arrest was applied by the petitioner before the Lahore High Court on the ground that he was being victimised and involved in false criminal cases on account of his being a worker of a particular political party. Instances were cited before the Court to show that the petitioner having been allowed interim bail by the Court was immediately arrested in other cases and when he was allowed bail in that case by the Court he was arrested yet in another case and in this manner he was subjected to humiliation which caused irreparable injury to him. The Court granted pre- arrest bail in that case and enunciated the principle for grant of pre-arrest bail as follows:- "10 The main conditions to be satisfied before exercise of jurisdiction to allow pre-arrest bail under section 498, Cr.P.C. Are:- (a)that there should be a genuine proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner; (b)that the petitioner should physically surrender to the Court; (c)that on account of ulterior motives, particularly on the part of the police there should be apprehension of harassment and undue irreparable humiliation by means of unjustified arrest; (d)that it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr.P.C. Would have to be kept in mind; (e)that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr.P.C.".
3. The principle enunciated in the above case has been reiterated in the case of Murad Khan v. Fazle Subhan and another PLD 1983 Supreme Court 82. In Murad Khan case the matter was brought before the Supreme Court in appeal against the order of Peshawar High Court whereby respondent was allowed anticipatory bail in a case of attempt to commit murder. Bail was granted in that case but the High Court of Peshawar only after considering the merits of the case. The grant of bail in that case was disapproved by the Supreme Court and following observations were made while reiterating the principles governing grant of anticipatory bail:- "The foregoing resume of the case-law since 1949 and the recent trend of authority would show that notwithstanding vary facts, this Court always thought it necessary to look for such circumstances which would furnish the assumption that the police was motivated on political consideration or other ulterior reasons, before granting pre-arrest bail.
4. I will also refer here some other cases in which pre-arrest bail was granted or refused keeping in view the above considerations. In the case of Muhammad Shafiq and another v. The State 1982 SCMR 384 the petitioners were facing prosecution under sections 148, 382, 452 and 506, P.P.C. Read with section 149, P.P.C. The complaint was lodged by Advocate against the petitioner and allegations were made that because of his pursuing a case against the petitioners his office was ransacked by the petitioners alongwith others and the clerk of the Advocate was injured by them. The F.I.R. Was lodged after the result of medico-legal examination of the injured clerk of the Advocate. The petitioners were refused anticipatory bail after they were granted interim bail by the High Court and against the order of refusal to grant them anticipatory bail the petitioners applied to the Supreme Court. It was contended before the Supreme Court that the case against the petitioners was wholly fabricated and false as the real object behind the complaint was to put pressure upon one of the petitioner's father to restore the tenancy of the bank in respect of a house. Some documents were also produced before the Supreme Court in support of the above contention. The Supreme Court while refusing the petition for leave to appeal observed that was not possible for the High Court at this stage to declare that the complaint against the petitioner was completely false and without foundation and that no such incident had taken place. In the case of Ali Muhammad v. Yamin and another 1981 SCMR 1139 pre-arrest bail was granted by the High Court of Lahore in a case which was initially registered against the respondents under section 304-A , P.P.C. But as a result of further investigation by the police the offence was changed to one under section 302, P.P.C. The allegation against the respondents in the came that he was trying to establish sexual relations with deceased boy but the latter resisted and, therefore, the respondent deliberately crushed the deceased under his tractor when the deceased was riding on bicycle on his way to the village. It is also alleged in the F.I.R. That he deliberately chased the boy in the wheat field hitting him with his tractor from behind. It was argued on behalf of the respondent before the Supreme Court that the case once again under investigation and that the medical evidence does not support the allegation that the deceased was crushed under the tractor, The Supreme Court cancelled the bail of the accused granted by the High Court before arrest and it was held that in order to justify grant of such bail the accused must show that he apprehended his arrest on account of ulterior motives which were found missing in that case. In Muhammad Safdar and others v. The State 1983 SCMR 645 bail before arrest was refused to three persons against whom a case was registered under sections 148, 324 and 325, P.P.C. Read with section 149, P.P.C. By the High Court of Lahore. The petition for leave to appeal was filed by these persons before the Supreme Court and it was contended that the incident had taken place at 8-00 a.m.
5. On 13th December, 1975 and one of the petitioners lodged a report in the concerned police station at 8-10 a.m.
6. On 14th December, 1975, whereas another F.I.R. About the same incident was registered at the same police station at 9-00 a.m. The same day by complainant side. In both the F.I.Rs. Each party accused the other having initiated attack and caused injuries to each other. In this background it was contended before the Supreme Court that the learned Judge of the High Court was in error is concluding that the First Information Report made by the petitioner Muhammad Akhter was prior in time to the counter-report made by Haji Muhammad Akhtar by the opposite party and that the other petitioner had suffered injuries on account of which right of private defence had accrued to him and his companions and, therefore, they are entitled to pre-arrest bail. The Supreme Court rejected the contention and observed as follows:- "The submissions made by the learned counsel for the petitioners overlook the fact that bail before arrest is not the rule in cognizable offences, and is to be allowed only when it can be shown that the petitioner apprehends arrest due to some ulterior motives on the part of the authorities or other influential persons or there are some peculiar features of the case which could justify the exercise of this discretionary power by the High Court or the Sessions Court. In the present case, no such features appear to be present. An incident has admittedly taken place between the parties, in which the petitioners are accused of having caused injuries to Muhammad Sadiq of the opposite party. In the normal course of criminal law the petitioners can legitimately ask for bail only after their arrest and not before arrest."
7. PLD 1984 SC 192 pre-arrest bail was granted to the petitioner by the Sessions Court in a case registered against him alleging misappropriation of valuable articles entrusted to him for safe custody by defrauding his superiors including a magistrate. The trial Court granted interim pre-arrest bail within few days of registration of the case which was later on confirmed. An application for cancellation of pre-arrest bail was moved before the High Court in which bail was cancelled. Against the order cancelling the bail petition for special leave to appeal before the Supreme Court was moved and it was contended that High Court could not cancel the bail under section 497(5), Cr.P.C. And it was further contended that the possibility of recovery of misappropriated article could not be considered as a valid ground for cancellation of pre-arrest bail. The Supreme Court refused to interfere with the order of the High Court and observed as follows:- "The possible recovery of stolen or misappropriated articles or articles used in the commission of the crime amongst other types of recovery, can be a good ground for cancellation of bail. There is no bar of propriety of law in this behalf. In this behalf it is the duty amongst others, of the Court granting pre-arrest bail to examine the question whether such an action would not frustrate the investigation vis-a-vis various factors including the relevant recovery. If the order granting pre-arrest bail by the trial Court is silent about it, the presumption would be that it was not conscious about the same.
8. I have referred above to some of the cases in which either bail before arrest was refused or was granted but was subsequently cancelled by the Supreme Court. I will now refer to some of the cases in which bail before arrest was granted by the Supreme Court after it was refused by the High Court. In Muhammad Azam and another v. The State 1980 SCMR 269 the petitioners were involved in a case registered against them under section 5(2) of the Prevention of Corruption Act and under section 409, P.P.C. For having constructed a drain in the area of the Town Committee Paharpur against the requisite specifications. It was alleged in the F.I.R. That actual work was got done by the petitioners themselves though on paper, one Ranjhoo was shown as its contractor. The petitioners applied for pre-arrest bail but the same was refused by the Sessions Judge and finally by the Peshawar High Court on the sole ground that the contractor referred to above had given a statement in which he admitted and disclosed that the work was got done through him on paper and that in fact the petitioners themselves were reaping the benefit of the said contract. The petitioners approached the Supreme Court for grant of pre-arrest bail and it was granted on consideration of the following factors:- (a)that the F.I.R. Does not contain the name of any first informant. This is deliberate for the purpose of escaping the ultimate liability for false prosecution. All that the F.I.R. Discloses is that its sources were "reliable sources".
9. This is not a proper and regular F.I.R. Under section 154, Cr.P.C.
10. (b)that no details of precise offence committed none of the person responsible for the same were given.
11. (c)that report of the A . C . E. Referred to in the F .I . R . And read out in Court did not particularise as to what were the specifications and how the construction of the drain was in violation of those specifications.
12. (d)that Ranjhoo appears to be disgruntled contractor who claimed that he had to receive dues from the department which were not paid to him.
13. (e)that the work was completed long ago, and the drains stood demolished due to flood/rains which means that no material evidence against the petitioners in particular and on the subject in hand in general was available; and lastly; (f)that the case appeared to be of personal and departmental intrigues and jealousies and has been put up in order to harass and ridicule the petitioners with an ulterior motive to disgrace them and get them hand cuffed and not in the interest of justice.
14. 1981 SCMR 935 the Lahore High Court refused to confirm anticipatory bail granted to the petitioner in a case which was registered against him under section 302/34/120-B, P.P.C. The allegation against the petitioner was that he entered into a criminal conspiracy with certain other persons in consequence of which Chaudhry Muhammad Anwar a former Provincial Minister at Gujrat was murdered. The F.I.R. Was lodged on the same day by an eye-witnesses and a cousin of the deceased who alongwith certain others had accompanied him in the jeep to the District Court on that fateful day. It was contended before the Supreme Court in the petition filed against the order of the Lahore High Court refusing confirmation of pre-arrest bail that the case against the appellant was a mala fide one to harass him because he belonged to the opposition group in the National Assembly. It was also stated before the Supreme Court that over the period of three years so in the past a large number of cases had been registered against the petitioner in none of which proceedings have commenced so far and that some of such cases were later cancelled. It was also argued that the confessional statement of the accused in the case recorded by the police were not legal evidence in the case and cannot form a basis of reasonable belief within the meaning of subsection (1) of section 497, Cr.P.C. The Supreme Court granted pre- arrest bail to the petitioner noticing that the appellant was not named in the F.I.R. Which fact was of a singular importance in that case when the F.I.R. Was lodged by a confident and an eye-witness of the deceased. It was also noticed by the Supreme Court while granting pre-arrest bail to the deceased that the fact that the confessional statement of the accused was not recorded until 12 days after the incident and that of the eye- witnesses .11 days was another noteworthy factor. It was also found that the allegation of the petitioner that series of criminal cases were registered against him at various places and no proceedings were taken so far was also not rebutted by the State. Accordingly the appellant was admitted to pre-arrest bail. In Sardar Muhammad and 4 others v. The State 1977 SCMR 326 the Lahore High Court refused bail before arrest in a case registered against the petitioner under sections 148, 307 read with section 149, P.P.C. On the ground that the F.I.R. In the case was lodged without any inordinate delay in which the names of the appellants were disclosed and there was evidence of the fire-arms having been effectively used. The F.I.R. In the case itself disclosed that the P.N.A. Had given a call for Hartal on the fateful day but some of the shopkeepers of Burewala Bazar belonging to the Pakistan Peoples' Party had not responded to the call. Sometime before the incident a P.N.A. Procession passed by Burewala Chowk and the processionists threatened Zakir Hussain Shah, a cigarette dealer, to close his shop and on his refusal to do so, he was injured by stones, pelted by the crowd. On hearing about the incident Muhammad Ashraf the complainant and others belonging to the People's Pary arrived there and took the injured to the hospital. The complainant and Farzand Ali crossed the bridge and as they neared the western wall of Purani Sabzi Mandi they saw the appellants armed with rifles, guns and a pistol.
15. On seeing them the first appellant abused them and then gave a Lalkara that they should not be spared that day upon which all the appellants fired at them as a result of which Farzand Ali received a bullet injury but the complainant managed to escape from there. It was contended before the Supreme Court that neither the complainant nor the injured were men of any political importance and, therefore, it was highly improbable that the appellants would have by design assembled to kill them with fire-arms. It was further contended that even though it was alleged that all the appellants had fired at them but it is surprising that only the injured was hit and that too by a single bullet while the complainant managed to escape. It was lastly urged before the Supreme Court that the petitioners were implicated out of malice because they were office-bearers of the P.N.A The Supreme Court on consideration of the above circumstances admitted the petitioners to pre-arrest bail.
16. From the resume of the above discussion it is quite clear that a circumstances in a case which may be a good ground for enlarging a person on bail after his arrest has never been considered alone as sufficient by the Court to grant pre-arrest bail to him. The Courts while granting pre-arrest bail to a person have always looked for some peculiar and extraordinary circumstances in a case which would show that the apprehended arrest was not for reasons stated in F.I.R. Case but for other ulterior motives and the real object of such arrest is not to bring home the real culprit but to cause undue harassment and humiliation to such person at the hands of police. It is thus clear that the dominant factor in all such cases are the existence of circumstances which furnished the assumption that the police was motivated on political consideration or it was a case of official intrigue or other ulterior reasons, which justified grant of bail before arrest. In addition to above factors the applicant applying for bail before arrest must always show that his case is otherwise fit on merits for grant of bail keeping in view the consideration set out in section 497, Cr.P.C. And there is a real and imminent apprehension of his arrest unless the Court intervened.