1. JUDGMENT DR. GHOUS MUHAMMAD, J. - Respondents No. 1 and 2 arc involved in Crime No. 61/1996 registered at P.S. Baldia Town, Karachi for the offence under section 14 Enforcement of Hudood Ordinance, 1979. They were granted interim pre-arrest bail by the learned Sessions Judge, Karachi West on 2.5.1996 which was confirmed after notice to the parties concerned on 2.6.1996. Therefore aggrieved by this order the applicant who is also the complainant has sought cancellation of bail through this Criminal Misc. Application.
2. As per FIR the complainant is a car dealer and is resident of House no. 1125, Guldad Shah Road, Baldia Town, Karachi West. On the night between 10th and 11th April, 1996 he alongwith his family shifted to the house of his cousin situate in the neighbourhood after locking his own house for repairs. At 8.00 a.m, his son Farhan got up and went to his house. There he found the lock broken and the goods were lying scattered in the almirah. He also found that the gold ornaments and cash were missing. In Initially the police refused to register the case but subsequently the FIR was registered against both the respondents on 21.4.1996.
3. I have heard Mr. Umer Faruq Khan learned counsel for the applicant and Mr. Gul Zaman Khan learned counsel for the respondents No. 1 and 2 and Mr, Muhammad Ismail Memon learned counsel for the State and have perused the record.
4. Learned counsel for the applicant/complainant submitted that learned trial Court erred in law by granting bail before arrest to the respondents No. 1 and 2 who were named in the FIR. With the result the police could not recover the gold ornaments, cash and other robbed articles from the said respondents/accused. He further submitted that the respondents No. 1 and 3 are involved in theft cases. Therefore in such cases bail before arrest is rarely granted particularly at the investigation stage. He also contended that co-accused Muhammad Tariq is habitual criminal against whom cases are still pending. Lastly he submitted that the two respondents have committed the offence under section 380 and 457 PPC which are punishable with 7 years and 14 years' R.I respectively. Therefore the concession of prearrest bail should not have been extended to the respondents No. I and 2. In support of his above submissions the learned counsel for the applicant cited the following case law:-
(a) Abdul Aziz v. The State and another PLD 1991 Peshawar 51.
5. In this judgment a learned single Judge cancelled bail of the petitioner who was granted bail by the learned Sessions Judge and observed that while dealing with the pre-arrest bail application the learned trial court did not keep in mind the principles enunciated by superior Courts for deciding bail applications and was impressed by extraneous circumstances such as delay in lodging the report, and also the failure of the petitioner to produce receipt evidencing the purchase of stolen ornaments.
(b) Murad Khan v. Fazal Dad and another PLD 1983 SC 82.
6. This is a leading judgment in which the Honorables Supreme Court noted the trend of the entire relevant case law since D'Andre it was held that the following conditions arc to be fulfilled in order to make out a case of pre-arrest bail:
(i) Arrest being for ulterior motives such as humiliation and unjustified harassment.
(ii) Prosecution motivated by motive so as to cause irreparable injury to reputation and liberty, and
(Iii) Motivation of police on political consideration.
(c) Zulfiqar v. Muhammad Ilyas PLD 1986 Lah. I6.
7. In this judgment a learned single Judge found the order granting pre-arrest bail to the accused as perverse having been passed in disregard of the principles governing grant of pre-arrest bail.
(d) Muhammad Azam v. The State 1996 SCMR DC 72.
8. In this order the Honorables .Supreme Court held that right of pre-arrest bail is limited to exceptional and rare cases which are based on mala fide enmity or where no offence has been shown to have been committed on the bare reading of FIR.
9. Learned counsel for the respondents have supported the impugned order. However learned counsel for the respondents No. 1 and 2 cited:
(a) Syed Amanullah Shah v. Die State and another PLD 1996 SC 241.
10. In this judgment the petition was filed against the order of the Lahore High Court whereby to the petitioner by the trial court was cancelled but a Full Bench of Supreme Court did not upheld the impugned order and granted bail to the petitioner and it was observed (at page 245) that" once bail is granted by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for cancelling the same. Provisions of section 497(5), Cr.P.C, are not punitive.
11. There is no legal compulsion for cancelling in cases punishable with death, imprisonment for life or imprisonment for ten years. To deprive a person of his freedom is most serious, It is judiciously recognized that unfortunately there 4s a tendency to involve the innocents with a guilty. .Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the pakistan relief of interim to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail than in the jail, during the trial. Freedom of an individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused-unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt so that further inquiry may be made into guilt of the accused." The learned counsel also referred to (B) Muhammad Ismail v.
12. Muhammad Rafiq and another PLD 1989 SC 585 wherein it was held by a Full Bench of in Hon'ble Supreme Court that when the court finds that the two essential Conditions contained in section 497(2) Cr.P.C are satisfied the accused shall become, entitled as of right to bill.
13. It is alleged that the incident took place on 24.9.1996 but it was reported to the police on 10.11.1996 Thus there is inordinate delay in lodging the FIR which has not been properly explained. There is also no direct evidence to connect the two respondents/accused with the alleged offence.
14. However it was pointed out by the learned Stale counsel that P.W. ShamshUr Rehman has stated tha the fool print marks on the under repair floor of the house appeared to be of the respondents No. 1 and 2. There is also back ground of enmity between the parties. Keeping in view the facts and circumstances of the case and on a tentative assessment of the entire evidence I find no force in the submission of the learned counsel for the applicant. Although it was rightly submitted by the learned counsel for the applicant that Murad Khan's judgment (supra) is a leading judgment on the point of pre-arrest bail yet the scope of bail before arrest was further enlarged in the case of Jamaluddin v. The state 1985 SGMR 1949 wherein it was held as unden- "It has been laid down by this Court that the grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard.
15. The Murad Khan's case to which reference was made by the learned Judge, this Court reiterated the principal that arrest for ulterior motives such as humiliation and unjustified harassment was a valid consideration for grant of pre-arrest bail. Similar rule was laid down in Ziaul Hasson's case. In our. Opinion, therefore, the order of the learned Sessions Judge, did not in any respect, disregard the well-recognized principle for grant of pre-arrest bail to the petitioner. Without upsetting the finding, reached by the learned sessions Judge that the petitioner had been involved for ulterior motives of harassing due to enmity existing between the parties, the learned Judge in the High Court was not justified to invoke his sue mote powers for the purpose of cancelling the order of bail."
16. It would be relevant to not that in Miran Bux The State and another PLD 1989 SC 347. The merits of the case were also made basis for making out a case of pre-arrest bail. In the case of Jam Sadiq Ali v. The State 1989 P.Cr.L.J. 1910 it was held by Ajm. Al Mian, J (as he then was) that merits of the case can also be touched while granting pre-arrest bail. Thus there is no doubt that the scope of the rule laid down in Murad Khan's case has been widened. Respectfully following; these judgments as well as the principle laid down in Syed Amanullah Shah v. The State (PLD 1996 SC 241) (at page 245) I am not inclined to allow this application. It is settled law that bail once granted by the competent court can riot be cancelled by the superior Courts unless the impugned order is arbitrary, capricious and against the evidence available with the prosecution. Non pf these ingredients are attracted to the facts of this case I also find no force in the submission of the learned counsel for the applicant that merely because anticipatory bail was granted therefore, no recovery could be prade. There is n allegation against the respondents No. 1 and 2 that they did not cooperate with the Investigating Agency during investigation. There is no hard and fast rule that in a theft case the accused .Is not entitled to the grant of pre-arrest bail, Each case is to be decided on it s own merits in the light of principles governing the grant or refusal of anticipatory bail.
17. The upshot of the above discussion is that finding no merit in. This application it is dismissed.