Muhammad Tabarak, complainant/petitioner lodged a report at Police Station Sadiqabad, Rawalpindi, on the 14th of April, 1995, which was registered vide first information report No. 112 under section 334 read with section 34, P.P.C., against three persons, namely, Muhammad Asghar (respondent No. l), Zahid Mahmood (respondent No.2) and Faraz Abbasi (respondent No.3).
2. According to Muhammad Tabarak, complainant/petitioner he was severally beaten by the three respondents. Muhammad Asghar (respondent No.1 allegedly gave Muhammad Tabarak complainant/petitioner a fist blow which landed on his mouth, as a result of which he lost a tooth (canine). Zahid Mahmood (respondent No.2) and Faraz Abbasi (respondent No.3) alleged kicked Muhammad Tabarak complainant/petitioner.
3. The accused persons who are respondents in this petition under section 497(5), Cr.P.C. Were granted bail before arrest by a learned Additional Sessions Judge of Rawalpindi. Learned counsel for Muhammad Tabarak complainant/petitioner submits that section 334, P.P.C. Being punishable with 10 years' R.I. Falls within the prohibition contained in subsection (1) of section 497, Cr.P.C. And therefore, contends that the learned Additional Sessions Judge of Rawalpindi has erred in law by granting bail before arrest to the accused persons. Learned counsel for the petitioner has frankly and boldly stated at the Bar that he presses this petition for cancellation of bail qua A Muhammad Asghar (respondent No. l) only because the injury on account of which Muhammad Tabarak complainant/petitioner lost a tooth, is specifically attributed to Muhammad Asghar (respondent No. 1).
4. It is now settled law that the grant of bail in bailable offences is a matter of right while the grant of bail in non-bailable offences is a matter of grace and concession. The grant of bail to an accused person against whom there are reasonable grounds to believe that he is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years, is prohibited by law unless such a person is either a woman or under the age of 16 years or sick or infirm. In such cases bail may be granted even to a person against whom there are reasonable grounds that he is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years but this is only because of rl;e proviso to section 497, Cr.P.C. Which is by way of an exception to the rule.
5. The grant of bail before arrest, however, stands on a totally different looting. Bail before arrest may be granted to an accused person who submits himself to the custodia legis of the Court and satisfies the Court that his arrest is certain and imminent and that the intended arrest is on account of mala fides to cause harassment to an otherwise innocent person. It is only in such cases that the Courts intervene in the due course of investigation. Thus, the grant of bail before arrest is an extraordinary concession which has to be exercised with utmost care and caution. The power to grant bail before arrest does not countenance judicial extravagance. In the instant case, the grant of bail before arrest to Muhammad Asghar accused/respondent No.1 is a case of judicial extravagance.
6. Resultantly, the order of the learned Additional Sessions Judge of Rawalpindi to the extent of granting bail before arrest to Muhammad Asghar accused/respondent No.1 is hereby set aside. The bail before arrest granted too accused/respondent No. 1 is, therefore, cancelled.
The petition for cancellation of bail granted to Zahid Mahmood (respondent No.2) and Faraz Abbasi (respondent No.3) is dismissed.