' Deceased Shoaib Zada, a student of 9th Class, was done to death within the limits of Police Station, Rustam, District Mardan. His father lodged the report (F.I.R. No,51) on 28-1-1995 wherein he stated that it was on 27-1-1995 (Friday) that his son had left the house for the mosque to take a bath and that he too left the house for work. It was at about Degar time when he returned to his house, his wife Mst. Kameena, the mother of the deceased, and his daughters informed him that Shoaib Zada had not returned to the house so far. Accordingly he started looking for the deceased alongwith his other relatives, that during the course of the search, on 28-1-1995, early in the morning, he came to know that a dead body was found lying near a canal known as Guryala Spin.
On the receipt of this information he alongwith his family members rushed to the spot and found the dead body of his son lying there. The dead body had bluish marks on its neck which showed that his son had been strangulated. He further stated, in the report, that since he had no enmity with anybody, therefore, he was not charging any person for murdering his son for the time being.
2. It was on 2-2-1995 that the supplementary statement of the complainant was recorded under section 164, Cr.P.C. Wherein he charged the respondents (Nos.1 to 5) for having killed his son. In his statement he also gave the motive for the commission of the offence and stated, that his son had friendly relations with the accused party as well as with P.W. Wajid Ali and P.W. Isteraj. It was further alleged that accused Tahir (respondent No,5) was in the habit of stealing money from his uncle and had stolen an amount of Rs,20,000, that since this money was allegedly distributed amongst the friends, therefore, accused Tahir (respondent No,5) asked all of them to return the same. The complainant further stated that his son had however, refused to oblige and to repay the amount and accordingly he was murdered. He, therefore, charged all the respondents (Nos.1 to 5) for having killed his son.
3. The learned counsel for the petitioner, Mr. Shahab-ud-Din Burch Advocate, submitted at the Bar that in this respect statements of P.W. Wajid Ali son of Matlab Khan and P.W. Isteraj son of Sher Khan have also been recorded under section 164, Cr.P.C. They too have supported the version of the complainant. According to the learned counsel for the petitioner, the learned Sessions Judge, Mardan, in the presence of this evidence on record, was not well within his right to grant pre-arrest bail to the respondents-accused. He contended that before granting pre-arrest bail, the learned Sessions Judge was bound to look for such circumstances which could furnish the assumption that the petitioner/police was motivated to involve the respondents-accused for ulterior reasons. He submitted that a plain reading of the order of the Sessions Judge, dated 14-3-1995 would show that he has not stated a single word about "mala fides" on the part of the prosecution. He thus prayed that the pre-arrest bail granted to the respondents-accused may kindly be withdrawn/cancelled.
Reliance was placed on case Khalid Mahmood v. Abdul Qadir Shah 1994 PCr.LJ 1784, wherein it was held as under:-- "(c) Criminal Procedure Code (V of 1898)--- ----S. 497(5)---Penal Code (XLV of 1860), S. 302/364/365/201/109/ 120-B---Pre-arrest bail, cancellation of---Police was not shown to have actuated with malice in the matter of intended arrest of accused, rather police really wanted to arrest him to unveil the circumstances leading to the murder of complainant's brother---Intended motivated arrest of the accused by the police did not appear to have been urged before the Sessions Court otherwise such aspect of the matter would have been adverted to by the Sessions Court in the ---Sessions Court in the circumstances had no power to grant pre-arrest bail to the accused without any express finding qua mala fides or ulterior motives on the part of the police---Fact that 16 months had passed since the grant of pre- arrest bail, per se, was not sufficient to abstain the Court from cancellation of the same---Pre- arrest bail granted to accused by Sessions Court was recalled in circumstances."
4. On the other hand, the learned counsel for the respondents, Mr. Khalid Khan, Advocate submitted that it was a fit case in which the learned Sessions Judge had rightly granted pre-arrest bail to the respondents (Nos.1 to 5), inasmuch as, in the first instance, they were not directly charged in the F.I.R. Lodged on 28-1-1995, under section 302/139/149, P.P.C., and secondly that till date no incriminating evidence has been collected so as to show that reasonable grounds do exist for believing that the respondents-accused (Nos.1 to 5) are connected with the commission of the offence with which they have been charged. In the circumstances, he stated that this bail cancellation application be dismissed.
5. I have also heard Mr. Hashim Raza, Advocate learned counsel for the State, who contended that the order of the Sessions Judge vide which he had granted pre-arrest bail to the respondents- accused is not only perverse but is also arbitrary. According to him, the criteria laid down in the Full Bench case of Hidayatullah v. The Crown PLD 1949 Lah. 21 had not undergone any change so far and the principles laid down therein had to be strictly followed. The power of granting pre-arrest bail had to be exercised sparingly and only in appropriate cases and that the Courts should strictly avoid the exercise of this power at random which is likely to embarrass the prosecution in investigation. He further stated that there is no doubt that the balance has to be kept and each case has to be dealt with on its own merits but the Court is bound to apply its mind properly before passing the order of pre-arrest bail. According to him, the learned Sessions Judge has not applied his mind and, therefore, his order was liable to be set aside. In this respect he placed reliance on a Full Bench case of Supreme Court reported as Murad Khan v. Fazal Subhan and another PLD 1983 SC 12 wherein it was held as under:-- "Criminal Procedure Code (V of 1898)--- ----S. 498-A---Pre-arrest bail---Conditions for grant of pre-arrest bail---Arrest being for ulterior motives such as humiliation and unjustified harassment, prosecution motivated by motive so as to cause irreparable injury to reputation and liberty, motivation of police on political consideration--- Counsel unable to satisfy Court with regard to condition of mala fides of intended arrest, case held, not fit for grant of anticipatory bail."
6. After having gone through the record of the case, with the help of the learned counsel for the parties, and the case-law produced before me. I am of the considered view that the learned Sessions Judge has failed to apply his mind properly. He has not mentioned anything about the "mala fides" on the part of the complainant/police and has also failed to state/mention that the intended arrest was a result of some intrigue or was to harass ridicule the accused, with ulterior motives or to disgrace them through the process of being hand stiffed. Accordingly there was no justification in allowing pre-arrest bail to the respondents-accused in the circumstances of the present case.
7. This petition is therefore, accepted and the impugned order of learned Sessions Judge, Mardan, dated 14-3-1995 vide which he had granted pre-arrest bail to respondents (Nos.1 to 5), is set aside with the direction that the said respondents shall be taken into custody and sent to jail forthwith and the law shall take its normal course.
Pre-arrest bail cancelled.