' Abdul Aziz son of Qatal, resident of Jhok Khalar, Tehsil and District, D.I.Khan, has moved this petition under section 497(5), Cr.P.C. For cancellation of the pre-arrest bail allowed to Dur Mohammad, accused-respondent, by the learned Sessions Judge, D.I.Khan on 2-5-1989.
2. The prosecution case in brief is that on 19-4-1989 at `Sehri Vella' when the petitioner and his family members woke up for taking Sehri meals, they found that their golden ornaments valuing Rs.16,000 and rupees 14,000 in cash have been stolen. The petitioner went to one Abdullah, Member, District Council, D.I.Khan and expressed his suspicion against Dur Muhammad alias Durra, accused-respondent herein. It is alleged that the accused-respondent agreed to settle the matter but later on declined to do so and, therefore, on 22-4-1989 at 13-30 hours, the petitioner went to Police Station Saddar, D.I.Khan, and lodged the report against the accused-respondent. In consequence, a case was registered against him under sections 9 and 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Ordinance VI of 1979).
3. Mr. Muhammad Salim Khan Mina !Chet, the then learned Session Judge, D.I.Khan, allowed pre- arrest bail to the accused-respondent, firstly on the ground of delay of three days in lodging the report because the alleged occurrence had taken place on the night of 19-4-1989 while the report was lodged on'22-4-1989, and secondly that the petitioner despite an undertaking to produce the receipts evidencing the purchase of the ornaments failed to do so.
4. Mr.Zahid Yousuf Qureshi, the learned counsel for the petitioner, seeks cancellation of the pre- arrest to the accused-respondent, inter alia, on the following grounds:
(i) That the delay in lodging the report has been fully explained in the F.I.R. Itself, in that, being a theft case the complainant spent about three days in locating the culprits;
(ii) that the accused-respondent of its own offered to settle the matter before Abdullah Khan, Member, District Council, D.I.Khan, but later on resiled from his undertaking;
(iii) that there was no previous enmity between the complainant and the accused-respondent nor there was any occasion for the complainant to falsely implicate the respondent in the case; and
(iv) that the learned Court below has committed an illegality in ignoring the essential sine qua non in connection with the consideration of pre-arest bail matters, as repeatedly laid down by the superior Courts, namely, the mala fides and ulterior motive of the charge.
5. In support of his last contention that the learned Sessions Judge had, while granting pre-arrest bail to the accused-respondent, ignored one of the principles which has often been emphasised by the superior Courts as a precondition for grant of anticipatory bail that it is not the rule in criminal cases and in order to justify the grant of pre-arrest bail, the petitioner must show that he apprehends his arrest on account of ulterior motive, the learned counsel placed reliance on : (1)
Murad Khan v. Fazal Subhan PLD 1983 SC 82 and (2) Zulfiqiar v. Mohammad Ilyas PLD 1986 Lah.
16.
6. The learned counsel thus submitted that an important precondition viz. The mala fides, was neither set up in the application nor was it pressed into service before the learned Sessions Judge, therefore, he was not justified in extending the extraordinary concession in allowing pre-arrest bail to the accused-respondent.
7. Mr.Hamesh Gul Khan, the learned counsel for the State assisted by Mr.Ghulam Hur Khan, counsel for the accused-respondent, have opposed the plea for cancellation of bail raised against the accused-respondent and supported the impugned order passed by the learned Court below.
8. There is abundant case-law for the proposition that apprehension of arrest being for ulterior motive, for example, that of humiliation and unjustified harassment is a sine qua non for pre-arrest bail. The learned counsel for the respondent was unable to satisfy me with regard to the condition of mala fides of the prosecution for the impending arrest of the accused-respondent. There is chain of authorities since 1949 on the proposition and the recent trend of authorities also draws the clear line of distinction between pre-arrest and after-arrest bail. This is a matter of regret and I am constrained to observe, that the learned Sessions Judge while dealing with the application of pre- arrest bail did not keep in mind the principles enunciated by the superior Courts in deciding application for pre-arrest bail and seems to have been unnecessarily impressed by extraneous circumstances, for instance, delay in lodging the report and also the failure of the petitioner to produce receipts evidencing the purchase of the ornaments which had been stolen.
9. Accordingly, I allow this petition and cancel the pre-arrest to the accused-respondent. He is present in Court and has been taken into custody by the authorities of the concerned Police Station. The accused-respondent would, however, be at liberty to move the competent Court for regular bail if so advised. The Court, to which an application is made, shall decide the question of bail strictly on its own merits without being influenced by the observations made by this Court on the line of distinction that had been drawn between pre-arrest bail and after-arrest bail. The record shall be sent forthwith to the competent agency for proceeding further in the case.
Pre-arrest bail cancelled.