ABDUL HAMEED DOGAR, J.---Petitioners Sajeel Rashid and Raheel Rashid had filed Criminal Miscellaneous No,4671-B of 2002 before the Lahore High Court, Lahore, for grant of pre-arrest bail but the same was dismissed vide order dated 8-8-2002 by a learned Single Judge in Chambers. By this petition, the petitioners have sought leave to appeal.
2. Briefly stated, the facts are that on 11-6-2002, F.I.R. No,408 of2002 under sections 380/427/148/149/448/511, P.P.C. Was registered at Police Station Gulberg, Lahore, at the behest of complainant Bahjit Majid against the petitioners. Wherein it was alleged that on the above date at about 2-45 a.m. They along with some unknown culprits armed with lethal weapons trespassed into his Restaurant, namely, Ziafat Restaurant situated at M.M. Alam Road, Gulberg-III, Lahore, and overpowered Chowkidar Safdar Khan. According to complainant, they entered into the office and took away stereo dek, Telephone set, Emergency lights and cash amounting to Rs,1.50,780 said to be the income of the previous day i,e, 10-6-2002 and also broke furniture and other valuable articles of the Restaurant. Later on. They while leaving issued threats to the Chowkidar to remain silent, else he would be done to death. While decamping, it was said that they left the bricks and sand at the place of occurrence.
3. We have heard Mr. Aitzaz Ahsan, learned Senior Advocate Supreme Court for the petitioners, Dr. A.
Basi Court for the complainant and Mr. Dil Supreme Court for the State and h proceedings of the case in minute particulars.
4. Mr. Aitzaz Ahsan, - learned contended that the petitioners are inn alleged case with mala fide intention ulterior motive. According to him, in between the complainant's father Abdul learned Senior Advocate Supreme Muhammad Tarar, learned Advocate ye also gone through record and lags.Senior Advocate 'Supreme Courtt and have been implicated in the in connivance with the police for fact there existed a civil litigation Majid and the petitioners, the uncleand the nephews over the ownership of the property and in that connection, the petitioners had filed Civil Suits N s.240/1 and 340/1 of 2002 against complainant and his father with re are to the open plot viz. Property No,49-C-1 and 21-C-1, Gulberg-III, are, the Ziafat Restaurant, wherein stay orders were passed and complainant party was restrained from interfering in the construction work of the boundary wall being carried out by the petitioners. In the said suits, it as pleaded that the complainant had forged an agreement whereby he was authorized to look after and maintain the plot without consideration but they arranged marriage functions and other celebrations without their permission which resulted in accumulation of lot of taxes against them. Learned counsel further argued that false implication of the petitioners was apparent on the far of the record as even according to the contents of the F.I.R. They were not only empty-handed but also while decamping, it is stated that they left sand and bricks at the spot. This version leads to a conclusion that the incident has not taken place in the manner as stated in the F.I.R. But supports the mode of the petitioners as gleaned in the civil suits that the dispute had in fact construction of wall on open plot. H ulterior motive and false implication of from the above contentions, thus the petitioners their case within the ambit of pre-arrest bail lit)t prima facie on merits into the allegations entitling them to the arrest arisen between the parties over the lastly contended that elements of be petitioners are primarily spelt out petitioners have not only succeeded in the provisions required for grant of also their case requires further probe e concession of grant of bail before arrest.
5. On the other side, Dr.A. Basi learned Senior Advocate Supreme Court for the complainant mainly contended that filing of civil suits and initiation of civil litigation by the petitioners against the complainant party were in fact done purposely. Thus complainant was justified to initiate criminal action and no malice of any sort could be attributed against him. According to him, the property in litigation was given under a lease agreement to the complainant by the petitioners, the tenure of which still subsisted when the petitioners in order to forcibly dispossess the complainant trespassed into the aforesaid Restaurant and not only looted the cash amounting to Rs,1,50,780.00 but damaged the valuable articles of theRestaurant, also threatened and overpowered the Chowkidar at gun point. He emphasized that on the other hand, the contention put forth by the petitioners in their private complaint filed against the complainant and his father was found false by the Magistrate who dismissed the same being baseless. He lastly urged that the petitioners have not been able to satisfy the prerequisite conditions of mala fide for false implication and intended arrest, thus in view of the principles laid down for grant of pre-arrest bail by this Court in the case of Murad Khan v. Fatal-e-Subhan and another (PLD 1983 SC 82), they do not deserve to be allowed anticipatory bail.
6. Mr. Dil Muhammad Tarar, learned Advocate Supreme Court for the State supported the contentions raised by the learned Advocate Supreme Court for the complainant and argued that the impugned order is quite perfect and does not suffer from any legal infirmity.
7. Admittedly there existed civil litigation over the above mentioned property in between the parties prior to the lodging of the F.I.R and the complainant and his father were restrained from interfering in the construction work of the boundary wall over Plot No,49-C-1, Gulberg-III, Lahore. The presence of the sand and the bricks at the scene of offence support the version of the petitioners that in fact no incident of any sort has taken place but the dispute emerged in between the parties over the construction of the boundary wall on the open plot by the side of Ziafat Restaurant. On query, the Investigating Officer present in the Court, disclosed that the eye-witnesses, namely, Chowkidar Safdar Khan and Moazzam Khan have neither mentioned the names of the petitioners in their respective statements .Recorded under section 161, Cr.P.C. Nor have shown them to be armed with fire-arms weapons. P.W. Moazzam Khan on the contrary, has stated in his statement that there had come a mob of about 100 miscreants at the time of incident.
8. No doubt this Court in the above-referred case has set down the 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, liberty and motivation of Police on political consideration.
9. In addition to the above mentioned criterias, this Court started considering the merits also as a ground for grant of bail before arrest. In the case of Jamaluddin v. The State (1985 SCM R 1949) this Court took into consideration the aspect of the petitioners being empty-handed at the time of the incident as one of the factors in addition to the previous enmity between the parties and pendency of many criminal cases as the ground for grant of pre-arrest bail.
10. Still more liberal, view was taken in the case of Meeran Bux v. The State and another (PLD 1989 SC 34) wherein not only the order of cancellation of bail was set aside but he as granted pre-arrest bail mainly on the grounds that he fired at the deceased which hit him on his left thigh, a non-vital part of the body.
11. From what has been discussed above, we are of tentative view that the chances of petitioners, having been involved due to the dispute over the abovesaid property cannot be ruled out at this stage.
12. Accordingly, the petition is converted into appeal and is allowed. The interim pre-arrest bail already granted by this Court on 16-8-2002 is C confirmed on the same terms and conditions.