' A case under section 302/109/34, P.P.C. Was registered against respondent No,1 vide F.I.R. No,145 of 1998, dated 31-5-1998 at Police Station Saddar Mianwali for the murder of one Muhammad Anwar Arain.
2. Respondent No,1 applied for pre-arrest bail in the aforesaid case which was dismissed by the learned Additional Sessions Judge-I, Mianwali vide his order, dated 16-6-1998 with the following observations:-- "The petitioner/accused is nominated in the F.I.R. The police has not exonerated the petitioner/accused during investigation. The petitioner/ accused allegedly made three attempts of murder on the complainant party previously as his brother Ghulam Akbar was murdered at the hands of the complainant party of this case. Therefore, he has a strong motive against the complainant party. This being a pre-arrest bail, which is exceptional remedy and is available only to the innocent persons, who are not involved in the occurrence and have been mala fide involved in the case due to some ulterior motive. As the petitioner/accused is very much connected with the occurrence, therefore, he is held to be not entitled to the concession of extraordinary relief of pre- arrest bail. The interim pre-arrest bail already granted to the petitioner, in the circumstances, is recalled and bail petition is dismissed."
3. Respondent No,1 moved post-arrest bail on 23-6-1998 i,e, after about one week of dismissal of his pre-arrest bail. It came up for hearing before the same learned Additional Sessions Judge-I, Mianwali, who vide his order, dated 4-7-1998 allowed bail to the respondent aforesaid with the following concluding paragraph : "According to the contents of the F.I.R., the petitioner/accused was not present at the time of occurrence and the only allegation against him is that of conspiracy under section 109, P.P.C. This provision of law having been declared repugnant to Injunction of Islam, the case of the petitioner/accused is that of further enquiry. The witnesses of conspiracy are closely related to the complainant of this case. Both the parties are on inimical terms before this occurrence. Therefore, the petitioner/accused is held to be entitled to the concession of post-arrest bail subject to furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of this Court."
4. Learned counsel for the petitioner has assailed the order, dated 4-7-1998 on the ground that respondent No,1 is named in the F.I.R. And a specific role is attributed to him for committing conspiracy and abetting the principal accused to finish the deceased Muhammad Anwar Arain. In this respect, it was alleged that according to the F.I.R., the respondent aforesaid had prompted the principal accused by stating that he would pay them Rs,1,00,000 if they finished the deceased as he was the killer of his brother and he wanted to take revenge from him. It was in pursuance of that abetment that the alleged hired assassins killed the deceased. It was, therefore, submitted that the learned Additional Sessions Judge who had earlier dismissed the pre-arrest bail on its merit after taking into account the investigation conducted in the case and also the facts brought before him, was not justified to grant post-arrest bail only after about eighteen days as nothing had changed in-between in respect of the facts of the case nor any extenuating circumstance had arisen during that period in favour of the respondent/accused. As such, the learned Additional Sessions Judge-I, Mianwali misused his judicial discretion to enlarge the aforesaid respondent on bail in an offence which is punishable with death or imprisonment for life.
5. Learned counsel for respondent No,1 submitted that the criteria which regulate the pre-arrest bail are different than the post-arrest bail. It was, therefore, alleged that the learned Additional Sessions Judge-I, Mianwali was justified to enlarge the respondent/accused on post-arrest bail after considering the facts that the parties were on inimical terms and that the offence of conspiracy under section 109, P.P.C. Has been declared repugnant to the Injunctions of Islam.
6. Learned State Counsel,, however, submitted that respondent No,1 was nominated in the F.I.R. And a crucial role was assigned to him which led to the murder of the deceased, as such, he was not entitled to bail.
7. I have considered the submissions made at the Bar and have also gone through the record carefully. Before I take up this petition on merit, it may be pointed out that the petitioner had earlier instituted Criminal Miscellaneous No,5406-B of 1998 Muhammad Sultan v. Muhammad Anwar and others for cancellation of bail but the same was dismissed for non-prosecution on 2-11-1998.
Hence, this petition was filed on the next following date i,e, 3-11-1998 and was admitted for hearing.
Now coming back to the merits of the case, it may be pointed out that I have already quoted the relevant paragraph from the order, whereby the pre-arrest bail was dismissed only eighteen days earlier, whereas, the post-arrest bail was granted although there was no change in the facts. In the offence punishable with death or imprisonment for life, the principles which regulate the pre-arrest bail as well as post-arrest bail are almost same, particularly when while refusing the pre-arrest bail, the merits of the case have already been taken into account. In the instant case, the learned Additional Sessions Judge while rejecting the pre-arrest bail had also taken into account the merits of the case and had come to the view that pre-arrest bail could be granted only to innocent persons who are involved in the case with mala fide intention. Since respondent No,1 was found to have been nominated in the F.I.R. And held guilty during the investigation and had earlier made three attempts of murder on the complainant party, therefore, the learned Additional Sessions Judge came to the conclusion that he had no case for pre-arrest bail. However, post-arrest bail was granted to respondent No,1 on 4-7-1998, although there was no change in the circumstances of the case, on the ground that the offence of conspiracy was repugnant to the Injunctions of Islam and as such, case against the respondent aforesaid had become that of further enquiry when both the parties were on inimical terms. All these facts were existing when the pre-arrest bail of respondent No,1 was rejected. One fails to understand as to what influenced the mind of the learned Additional Sessions Judge to, grant `post-arrest bail while taking into account the same circumstances of the case. This is surely the misuse of judicial power. Needless to say that according to the F.I.R., respondent No,I had played a pivotal role leading to the murder of the deceased. He was found guilty during the police investigation on the basis of evidence so far collected. Hence, on merit, the aforesaid respondent had no case for bail. Therefore, the impugned order passed, by the learned Additional Sessions Judge-I, Mianwali appears to be a bad exercise of jurisdiction.
8. In view of my above discussion, the petition for cancellation of bail is allowed and the to respondent No,1 by the learned Additional Sessions Judge-I, Mianwali vide his order, dated 4-7- 1998 is cancelled. The aforesaid respondent is present in Court and is directed to be taken into custody. He shall be sent to jail as under trial prisoner.
Bail cancelled.