' This application has been filed for .Cancellation of bail before arrest granted to Khalid Mehmood and Tariq Mehmood respondents Nos. 1 and 2 by the learned Additional Sessions Judge, Mianwali vide his order dated 29-1-1994.
2. Briefly stated the facts of the case are that on a report lodged by Sakhawat Ali petitioner, a case under sections 337/A-II, 337/F-I, 148/149 of the P.P.C. Was registered against respondents Nos. 1 and 2 and 5 others namely Mian Muhammad Afzal, Mian Muhammad Rafique, Mian Maqbool Ahmad, Mian Muhammad and Mian Nascem Akhtar at Police Station Kundian, District Mianwali. According to the prosecution story on 17-12-1993, the accused person were demolishing the common watercourse. They were stopped by the complainant and two injured P.Ws. From doing so whereupon the accused gave abuses to the complainant and then Mian Maqbool Ahmad and Mian Rafique held Liaqat Ali in `Japha' and Tariq Mehmood respondent No,2 gave a Kassi blow (from the blunt end) on his forehead. Respondent No,2 gave another blow on his right hand. When Shaukat Ali, real brother of Liaqat Ali, came forward to rescue his brother then Khalid Mehmood respondent No, 1 gave Kassi blows (from the blunt side) on his right arm and back of the left hand.
Shaukat Ali fell down whereupon Khalid Mehmood gave another blow on his right ankle. The motive stated in the F.I.R. Is that the lands of the complainant party and the accused persons used to be irrigated from the common water-course and that the accused persons had asked the complainant party once or twice to demolish the Khal but they did not agree which caused grievance to them.
3. The injured persons were examined by Doctor Mehr Khan, Medical Officer, District Headquarters Hospital, Mianwali who found the following injuries on them:-- ' Mian Shaukat Ali:
(1) A skin deep laceration (linear) with sharp edges by 7 c.m. Long-oblique on the front of right forearm lower half.
(2) Two skin deep lacerations 2-1/2 c.m. And 2 c.m. Long with sharp edges on the back of left hand outer part.
(3) A laceration 2 c.m. x 1 c.m. Big superficial on the outer side of the lower end of the right leg.
' Mian Liaqat Ali:
(1) A lacerated wound 4 c.m. x 1 c.m., bone exposed on the left forehead 4 c.m. From the left eye- brow and 3.5 c.m. From the midline.
(2) A small liner laceration 1/2 c.m. Being the deep on the outer side of the right little finger.
4. The case was initially investigated into by Muhammad Khan A.S.I. Who (according to learned counsel for respondents) did not conduct the investigation fairly which was transferred to Allah Bakhsh S.I. The Investigation Officer found Muhammad Iqbal, Naseem Akhtar, Muhammad Rafique, Maqbool Ahmad and Mian Muhammad to be innocent. He also opined that Liaqat Ali and Shaukat Ali the injured P.Ws. Had received the injuries during the scuffle with the accused party.
5. The petitioner's learned counsel urged that the conditions for grant of pre-arrest bail were not made out and that the learned Additional Sessions Judge acted illegally and arbitrarily in admitting respondents Nos.1 and 2 to pre-arrest bail. He submitted that mala fides were neither specifically stated in the bail petition nor urged before the Court so as to justify grant of anticipatory bail. He further submitted that the statements of the injured persons, prima facie, made out the offences against the respondents who were not entitled to pre-arrest bail. He placed reliance on the following judgments:-
(1) Muhammad Safdar and others v. The State 1983 SCMR 645.
(2) All Muhammad v. Yameen and another 1981 SCMR 1139.
(3) Abdur Rahim v. The State 1986 PCr.LJ 198.
(4) Muhammad Pervaiz v. Badi-uz-Zaman 1985 PCr.LJ 3007.
(5) Qurban Hussain v. The State 1984 PCr.LJ.
43.
(6) Haji Gumun v. Muhammad Afzal and 2 others PLD 1991 Peshawar 54.
6. On the other hand learned counsel for respondents Nos. 1 and 2 urged that Khalid Mehmood was a practising lawyer and a member of Mianwali Bar Association while Tariq Mehmood was M.BA.
Student. He urged that the respondents would suffer an irreparable loss and humiliation if arrested by the police. He further urged that all avenues of the case had been taken care of by trial Court which had rightly exercised discretion in favour of the respondents. He further urged that the occurrence had taken place in the land belonging to respondents Nos. 1 and 2 and that the respondents never caused any injury to Liaqat Ali and Shaukat Ali. According to him, the injuries were the result of scuffle between the parties as opined by the Investigating Officer. He submitted that the ground of mala fide arrest was taken in the bail petition. Lastly he submitted that rule of mala tide arrest was not to be rigidly applied in every case. In support of his contention be relied on the following judgments:--
(1) Haji Ghani v. The State PLD 1988 Lahore 507.
(2)Meeran Bux v. The State and another PLD 1989 SC 347.
(3) Jamal-ud-Din v. The State 1985 SCMR 1949.
(4)Raza Muhammad Sial v. The State 1988 SCMR 1223.
(5)Ibrahim v. Hayat Gul and others 1985 SCMR 382.
(6)Malik Muhammad Bashir v. Crown PLD 1952 Lah.
253.
7. The learned State Counsel supported the application for bail to the extent of Tariq Mehmood respondent No, 2 but did not support it qua Khalid Mehmood respondent No, 1 as according to him, there was cogent material to implicate him in the case.
8. In order to claim pre-arrest bail an accused person is not only required to make out a good prima facie ground but also that his intended arrest would be mala fide or an outcome of ulterior motives of causing harassm ent or humiliation to him. This rule was laid down in the Full Bench case of Hidayat Ullah Khan v. The Crown PLD 1949 Lahore 21 which is being consistently followed and reiterated by the superior Courts. In the case of Zia-ul-Hasan v. State PLD 1984 SC 192 it was held that a Court had no power to grant bail before arrest unless all conditions laid down by the superior Courts from time to time were fulfilled particularly, mala fides of intended arrest which was most essential and had to be specifically stated. In the case of Muhammad Safdar and others v.
State 1983 SCMR 645, the Hon'ble Supreme Court was pleased to hold that in a cognizable case grant of bail before arrest was not a rule and was to be allowed only when it could be shown that the petitioner apprehended arrest due to some ulterior motives on the part of the authorities or other influential persons. While refusing leave to appeal in the said case the I lon'able Supreme Court was pleased to observe, "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". In the case of Muhammad Shahbaz Khan and 2 others v. State 1978 SCMR 432, the Hon'able Supreme Court dismissed the petition for leave to appeal as the petitioners were not going to be arrested on account of mala fides of prosecution but for being accused of serious criminal offences of having caused many injuries to the complainant party. It was held that such a case was not at all fit for grant of pre-arrest bail. In the case of Mohib Raziq v.
Shah Muhammad etc. 1983 SCMR 1130, the Hon'ble Supreme Court cancelled the pre-arrest bail on finding that discretion by the Courts below in allowing bail had not been exercised in accordance with law as prima fade, there was no element of mala fide and irreparable harm likely to be caused to the petitioner.
9. Adverting to the facts of the present case, I find that the respondents are alleged to have caused 5/6 injuries to Liaqat Ali and Shaukat All P.Ws. Over a dispute pertaining to demolition of the common watercourse. The site-plan prepared by the police shows that the occurrence had taken place in the land belonging to Khurshid Muhammad complainant. The respondent's plea that the occurrence had taken place in their land needs to be established through evidence at the trial. A reading of the order allowing pre-arrest bail to respondents Nos. 1 and 2 shows that the learned Additional Sessions Judge was not even conscious of the essential requirements of the law laid down by the superior Courts in matters relating to pre-arrest bail. There is nothing to show that respondents Nos. 1 and 2 had been implicated in the case with mala fide intentions or ulterior motives of harassing or humiliating them. Similarly the police does not appear to be actuated with malice for the intended arrest of respondents Nos. 1 and 2. The fact that respondent No, 1 is M.BA.
Student or that respondent No, 2 is an Advocate, per se, is not sufficient to entitle them to the concession of pre-arrest bail. Law does not make any distinction on the basis of caste, creed, colour or status of citizens and treats them equally. Even a street-hawker or a labourer who earns his livelihood through honest work is highly respectable. Pre-arrest bail is not the privilege or prerogative of the high officials, politicians, landlords, businessmen or other persons enjoying worldly status or positions. The argument of the respondents' learned, counsel that the respondents' bail be not cancelled as they are highly respectable persons and would suffer great humiliation if arrested by the police, does not carry much weight, prima facie, there is . Sufficient material to connect them with commission of the offence. It may be mentioned that the parties are closely related and the complainant does not appear to have come forward with a cooked up case. The injured witnesses have fully supported the prosecution version in their statements under section 161 of Cr.P.C. The bald' opinion of the Investigating Officer that the injuries were received by the injured P.Ws. In scuffle between the parties does not appear to be based upon sound evidence.
The theory of scuffle is nagatived by the statements of the injured P.Ws. As well as by the fact that not even a scratch was caused to the accused' persons. In the normal course, respondents Nos.1 and 2 may legitimately ask for bail only after their arrest but not before arrest as held by the Hon'ble Supreme Court in Muhammad Safdar's case referred to above. It may be re-emphasized that for purposes of pre-arrest bail, it has to be shown that the intended arrest of an accused would be mala fide and an outcome of ulterior motive on the part of the complainant and police to harass and humiliate him. The said condition does not appear to have been satisfied in the present case. It has been mentioned in ground No,8 of the bail petition filed by respondents Nos.1 and 2 that the entire action against them is based on mala fides but the nature of mala fides was not specified or explained. Moreover, the said point was not urged before the learned Additional Sessions Judge. Therefore, the Court below had no jurisdiction to grant pre-arrest bail to the respondents. Both the respondents were armed with Kassis and launched an attack on the complainant party in broad daylight. The injury caused to Liaqat All on the forehead had exposed the bone. The said injury was inflicted on the vital part of the body and prima facie made out the offence of Shajja-i-Mudihah which is punishable under section 337-A (ii) of the P.P.C.
10. The judgments relied upon the respondents' learned counsel proceed on their own distinguishable facts. In the case of Meeran Bakhsh v. The State and another PLD 1989 SC 347, pre- arrest to the accused was cancelled by the High Court without considering that he had stated in his bail petition that his arrest was for ulterior motive so as to humiliate him as the complainant party had won over the police and that the case was fabricated against him. Moreover, the High Court did not consider that the solitary injury attributed to the accused was caused on a non-vital part and was not fatal. Therefore, the Supreme Courts was pleased to allow pre-arrest bail to the accused. In the case of Raza Muhammad Sial v. The State 1988 SCMR 1223 the material on the record showed that the case required further inquiry and that the petitioner was implicated due to departmental intrigue and conspiracy. The case of Ibrahim v. Hayat Gul 1985 SCMR 382 relates to bail after arrest and need not be discussed. So far as the case of Malik Muhammad Bashir v. Crown PLD 1952 Lahore 253 is concerned, it merely emphasizes that the rule of granting bail before arrest only in cases involving ulterior motives or irreparable loss, is not to be rigidly adhered to in every case. Meaning thereby that the peculiar facts and circumstances of each case have to be carefully seen while applying the said rule. In Haji Ghani's case PLD 1988 Lahore 507 it was generally observed that no hard and fast rules existed to establish ulterior motives because direct or positive evidence to sustain a plea of mala fides on part of police was seldom available. Hence, inferences have to be drawn from the facts and circumstances of each case. On facts, it was found that although there was no evidence of commission of theft of bonds against the accused, yet police applied and obtained non-bailable warrants of arrest against him. This prima facie showed mala fides on the part of the police and bail before arrest was granted. In the peculiar facts and circumstances of the present case narrated above, it is evident that the respondents have, prima facie, committed a cognizable offence and are sought to be arrested by the police in the normal course of investigation. Therefore, the respondents were not entitled to concession of pre-arrest bail.
11. For the foregoing discussion, I allow this petition and cancel the to respondents Nos. 1 and 2. After arrest, they will be at liberty to apply for bail in the Courts of competent jurisdiction. Their petition for bail after arrest shall be independently decided by the Courts below without being influenced by the observation made in this order.
Bail cancelled.