' The petitioner Shah Jahan Khan has moved this petition for bail before arrest under section 497/498, Cr.P.C. In a case registered against him under section 302/34 read with section 109, P.P.C.
At Police Station Moosa Khel, District Mianwali vide F.I.R. No, 103, dated 16-10-1988. The only allegation against the petitioner is that he exhorted his son Zaman, Ali Khan, his real brother, Sardar Khan and Muhammad Khan his friends to commit the offence. Learned counsel has forcefully contended that the petitioner was admittedly not present at the spot and that he has been involved in the case falsely on the ground that earlier a habeas corpus petition was moved on his behalf for his release from the Police Station Moosa Khel. In this behalf the learned counsel has brought to my notice an order passed by this Court on 5-9-1988 Annexure 'C'. This order discloses that the petitioner was produced before this Court and was set at liberty. The learned counsel maintained that on account of the said earlier litigation against the S.H.O. Police Station Moosa Khel, he has been falsely involved in the :ase and that there is no evidence whatsoever to connect the petitioner with the :ommission of the crime.
2. The Investigating Officer is present. He states that he has no objection if he petitioner is admitted to bail before arrest. He further states that nothing is to recovered from him. However, he has mentioned that the petitioner is required to join the investigation because he has to effect the arrest of the absconding accused.
3. Learned counsel for the State and the learned counsel for the complainant have opposed the grant of pre-arrest bail to the petitioner. They have unanimously stated that the case in hand might be a fit case for bail after arrest but certainly not a fit case for bail before arrest.
4. I have heard the learned counsel for the parties and have perused the record. The petitioner appears to be sufficiently old and in my view he is far above 70 in age. The only allegation against him is that he instigated his co-accused to commit the offence. Admittedly, he was not present at the spot when the offence was committed. At this juncture, there are reasonable grounds to believe that the petitioner is not guilty of the offence under section 302/34/109, P.P.C. Under the circumstances, this is a good case in which the discretionary powers may be exercised in favour of the petitioner to admit him to bail before arrest. Prima facie there is no strong evidence available against the petitioner. He had a solid argument to rise and argue that he has been involved in the case falsely on account of the fact that earlier a habeas corpus petition was moved on his behalf in the High Court for his recovery from the illegal and uncalled for confinement of the police of the Musa Khel Police Station. Nothing substantial could be urged by the learned counsel for the respondents so as to dislodge the plea of malice against the investigating police. Accordingly the ad interim bail already allowed to the petitioner is confirmed with a direction that he shall submit fresh bonds in the sum of Rs,1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court. The petitioner is directed to join the investigation as and when required by the Investigating Officer. The Investigating Officer shall conclude the investigation of the case within one month's time and after completing the same shall submit the challan immediately for the trial of the accused in accordance with law. What has been observed above is tentative and shall not at all prejudice the case of either party on merits.