' Application for cancellation of bail has been moved against respondents Sardar, Arab and Khalid Mehmood in case F.I.R. No,124, dated 28-3-1998, Police Station, Khanpur registered under section 302/34, P.P.C.
2. Report was made by Mst. Riaz Bibi wife of deceased Muhammad Aslam. In the report it was stated that the deceased left the house on 24-3-1998 and did not return till 28-3-1998 when, Ghulam Haider a brother-in-law of Muhammad Aslam deceased informed her about the presence" of dead body of her deceased husband in the limits of fields of village Mirpur.
' According to the report Muhammad Aslam deceased having undergone imprisonment in some prohibition case had come to the village about four months prior to his death. Before he was imprisoned, he had received some knife blows, which she was later told by her deceased husband, have been inflicted by one Tauqeer on the instigation of Khalid Mehmood and Sardar respondents.
It was further alleged that her deceased husbatid and the aforesaid Khalid Mehmood and Sardar were both dealing in heroin business and were as such business rivals. In the report, she has stated that at present she would not charge them but would rather wait to satisfy herself about their involvement.
2. Sardar and Khalid Mehmood applied for pre-arrest bail on 4-4-1998 while Arab Khan on 18-4- 1998. Both the applications were consolidated and a single judgment/order was passed on 30-4- 1998 by learned Sessions Judge, Haripur whereby pre-arrest bail of all the three respondents was confirmed.
3. Learned counsel for the petitioner submitted that the accused-respondents are charged in a murder case and would not be entitled to the concession of extraordinary relief in the form of pre- arrest bail. It was submitted that there was sufficient evidence in the shape of statement of Mst.
Maroof Jan who has made her statement to the police in which she has given the evidence of last seen of the deceased in the company of Sardar respondent. He has also referred to the supplementary statement of Mst. Riaz Bibi, the complainant, recorded on 31-3-1998 wherein she has disclosed that her husband at some point of time had told her that in case of his death it would be Sardar and Khalid Mehmood respondents who would be responsible. Learned counsel had also made reference to the statement of Tauqeer to substantiate the motive alleged in the F.I.R. He contended that the cumulative effect of all these statements would lead to an irresistible conclusion that the accusation against the respondents is well-founded and they are sufficiently linked with the commission of the crime.
5. On the other hand, learned counsel for. The respondents submitted that the police record is full of bad antecedents of the deceased who was a habitual criminal and had number of enemies.
That, earlier there was sufficient strained relations between the local police and the accused- respondents which found base on the part of the police to involve the respondents in the crime for their ulterior motive and mala fide intentions. He submitted that the statement of Mst. Maroof Jan was recorded after a considerable delay, that Tauqeer is an interested witness as earlier he was involved in the stabbing case by the deceased and was pardoned, that, the supplementary statement of Mst. Riaz Bibi is an afterthought and there is no connecting link as against the respondents to show that they were in any manner involved in the crime.
6. Learned State Counsel submitted that on the basis of facts and circumstances of the case, the respondents would not be entitled to be released/allowed pre-arrest bail and may be that they had a good case for post-arrest bail.
7. Grant of pre-arrest bail in a murder case of course is a rare phenomenon and should ordinarily not be granted, more particularly, when it is a case of circumstantial evidence. The reason being, that the accused who were charged during investigation if given to the custody of the police there is always some likelihood of real facts coming upto surface. But, in the instant case, as in the report the material fact about informing the deceased husband his wife, the complainant, that in case of his unnatural death it would be Khalid Mehmood and Sardar, one fails to understand as to why the complainant lady was hesitant in giving this version in her report. The paramount ingredient and consideration for allowing pre-arrest bail is ulterior motive and mala fide intentions both on the part of the complainant and the police. As it was argued that police was nourishing grudge against the respondents and as admitted by the complainant that the respondents were indulging in selling narcotics, it is but natural that the local police would be sick of the activities of the respondents and, therefore, possibility cannot be ruled out that on having found an occasion for involvement of the respondents where there was apparently a blind murder, police was motivated to bring in the names of the accused-respondents through supplementary statement of Mst. Riaz Bibi, the complainant.
8. The statement of Mst. Maroof Jan is belated one. She according to her statement has seen the accused Sardar only in the company of deceased Muhammad Aslam on 24-3-1998 i,e, about four days prior to the killing of the deceased. Such long span of time would not be and cannot be termed to be the evidence of last seen of the deceased with Sardar. '
The last seen evidence is generally taken to be weak evidence and can be taken into consideration along with other p.,..Ces of evidence but in any case, the last seen evidence should be close in proximity of the time killing. Otherwise, it would be very dangerous proposition to accept that a person who was seen last couple of days before his murder with someone should be deemed to have been killed by such person, more particularly in absence of any direct enmity. The prosecution, if relying on last seen evidence, should have also procured some more material as to the presence/company of the deceased with Sardar between 24-3-1998 up to 28-3-1998 or any other time falling within this period where both were seen together.
' As for statement of Tauqeer and the supplementary statement of Mst. Riaz Bibi are concerned, they also do not provide any corroboration about the killing of the deceased at the hands of the accused-respondents except motive. Motive, however, it may be apparently strong, cannot be substituted for substantive evidence and cannot be made a ground for refusal of bail because at times it is mere speculation based on apprehension and imaginations.
9. The contention as raised by the learned counsel for the petitioner that being a murder case pre- arrest bail should not have been granted. My view of the matter is that grant or refusal of bail and the grounds relevant thereof are envisaged/embodied in sections 496, 497 and 498, Cr.P.C.
Wherever a case falls within the ambit of section 497(2), Cr.P.C. The accused become entitled to be released on bail as of right. This right of the accused is, however, subject to certain limitations by virtue of judgments of the superior Courts where pre-arrest bail is sought i,e, there must be element of ulterior motive, mala fide intentions, harassment and victimization both on the part of the complainant and the police. The aforesaid rule has been sufficiently relaxed by the august Supreme Court of Pakistan in a case reported as Meeran Bux v. The State and another PLD 1989 SC
347. In view of the judgment of the Supreme Court of Pakistan there is no absolute bar in allowing pre-arrest bail to an accused even in murder case if his case is otherwise found fit for grant of such relief.
10. In this case, the respondents were allowed pre-arrest bail after due consideration of material by the learned Sessions Judge and this Court is seized of cancellation application. Because, the considerations applicable for grant of bail, allowing pre-arrest bail and cancellation thereof are different. Bail once granted by a Court of competent jurisdiction is not to be recalled/cancelled on mere technicalities in the absence of any perversity/illegality shown in the order of the lower Court allowing bail. This application for cancellation of bail is, therefore, dismissed.