PLJ 2010 SC 503

[Appellate Jurisdiction]

Present: Khalil-ur-Rehman Ramday & Sarmad Jalal Osmany, JJ.

Rana MUHAMMAD ARSHAD--Petitioner

versus

MUHAMMAD RAFIQUE & another--Respondents

Crl. Petition No. 25 of 2009, decided on 26.3.2009.

(On appeal from the order dated 19.12.2008 of the Lahore High Court, Lahore passed in Crl. Misc. No.
10599-B/08)

Criminal Procedure Code, 1898 (V of 1898)--

----S. 498--Bail before arrest--Interpretation of latter part of S. 498, Cr.P.C.--Vesting power in High Courts
and Courts of Sessions--On account of passage of time concepts tend to get foggy and blurred and need
to keep reminding--To re-state fundamentals relating to the matters of bail before arrest--Validity--
Powers so found and parameters so prescribed have been regularly and repeatedly coming up for
scrutiny by Superior Courts including Supreme Court--But each time the matter was re-examined--
Concept as it was initially pronounced as it developed may be summarized for the benefit of all as grant
of bail before arrest is on extraordinary relief to be granted only in extraordinary situations to protect
innocent persons against victimization through abuse of law for ulterior motives, (b) pre-arrest bail is
not to be used as a substitute or as an alternative for post arrest bail, (c) bail before arrest cannot be
granted unless the person seeking it satisfies the conditions specified through S. 497(2), Cr.P.C. unless he
establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence
alleged against him and that there were, sufficient ground warranting further inquiry into his guilt, (d)
he must also show that his arrest was being sought for ulterior motives, to cause irreparable humiliation
to him and to disgrace and dishonour him, (e) such a petitioner should further establish that he had not
done or suffered any act which would disentitle him to discretionary relief in equity e.g. he had past
criminal record or that he had not been a fugitive at law and finally that, (7) in the absence of a
reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in first
instance approach the Court of first instance i.e. the Court of Session, before petitioner the High Court
for the purpose. [Pp. 507 & 508] A

Cancellation of Bail before arrest--

----Fugitive at law for more than two years--Bail before arrest in double murder case--Grant of bail
before arrest to co-accused who had also remained an absconder and a proclaimed offender for about
2« years also surfaced and again, directly before High Court without having first had recourse to Court of
Sessions--High Court had granted the bail on the ground that right side of stood paralyzed and that he
could not even walk without help another person--Validity--A person seeking bail before arrest must, in
absence of compelling reasons, approach the Court of Sessions in the first instance--This had not been
so done in the present case and not a word had been said by High Court for allowing such a deviation
from the normal procedure--High Court might have permitted the departure on account of physical
disability of accused--But even such a presumption would not be sufficient to justify the digression from
the established principle of law--If he could have travelled to Lahore in his physical condition then there
was nothing stopping him from travelling, more or less the same distance to the Court of Session at
Sialkot--Held: Discretion exercised by the High Court in admitting accused to bail before arrest through
impugned order was not sustainable--Bail granted to accused through an order passed by High Court
was recalled. [Pp. 510, 512 & 513] B & G

Bail before arrest--

----Cancellation of--Condition of malafides--Power of Court--No Court would have any power to grant
bail before arrest unless all the condition specified for allowing bail before arrest especially the
condition regarding malafides were proved--Disappearance of accused for more than two years after his
nomination as an accused--Validity--Accused was in no condition to escape arrest or to abscond and it
was the police which had not caused his arrest for such a long period of time which observation
established absence of ulterior motives on the part of police. [P. 510] C

Cancellation of Bail before arrest--

----Motive alleged in FIR--Not nominated in FIR--Litigation between the parties over a plot of land, that
complainant physically knew the accused party despite which he had not named them as killers of
deceased and had nominated accused only through a supplementary statement, as an after thought
about a month--Alleged conduct of complainant--Litigation was of a rather recent origin i.e. less than a
month old when the occurrence took place; that complainant might well have been interested in out
come of litigation but was not directly a party to the same--Evidence was available in abundance to
prove that complainant knew the accused party at the time of the presence occurrence and thereby
declare that the prosecution case had become doubtful and consequently one of further inquiry was not
a reasonably deducible inference. [P. 510] D & E

Prima facie--

----Litigation with accused party over a plot was mentioned in FIR--Despite this he had frankly conceded
that he did not know the ones who had done murder of his son--Prima facie shows honesty and good
faith on his part because if he was to be malicious then there was nothing stopping him from
nominating his alleged enemies.

[P. 512] F

Raja Muhammad Ibrahim Satti, Sr. ASC for Petitioner.

Mr. Zulfiqar Khalid Malooka, ASC for Respondent No. 1.

Mr. M. Siddique Baloch, DPG Punjab for State.

Date of hearing: 26.3.2009.

Judgment

Khalil-ur-Rehman Ramday, J.--One Rana Arshad alleged through FIR No. 305 of Police Station Sambrial of
District Sialkot that on 17.6.2006 he was going to Sambrial in his motor car with Khawaja Atif,
Muhammad Ikram and Muhammad Mujahid Hussain traveling with him while his son Inamullah was also
accompanying them but in his own car; that when they reached Malkanwala canal bridge, a black Honda
car reached there and four occupants of the same opened fire at the said Inamullah's car; that
thereafter the said assailants got down from their car and made further indiscriminate firing at the
above-mentioned motor car of the complainant's son as a result whereof the complainant's son and his
companion, namely, Farooq Shafi died at the spot. It appears that the assailants were not identifiably
known to the complainant who, consequently, did not name any one of them in the FIR. He, however,
did make a mention in the said FIR that he had some litigation relating to a plot of land with one Faqir
Muhammad and his sons, namely, Nawaz, Sarfraz, Rafique (the respondent before us) and Shahbaz and
that the said Faqir and others had colluded with one Maqbool and others to eliminate him and his said
son and that he had been receiving threats from them in the said connection. He had added that he
could identify the killers of his son and of the said Farooq if he ever came across them.

2. It was so on 16.7.2006 i.e. about one month after the said occurrence that the said complainant
submitted an application before the DSP of Sambrial stating therein that on the said day he had gone to
the District Courts of Gujranwala in connection with case FIR No. 221/2006 of Police Station Saddar,
Kamoke (which FIR related to the same plot dispute mentioned above) where he came across some
persons and identified them as the ones who had done his son and his companion Farooq to death and
where, on his inquiry, their names were told to him as Rafique (the respondent before us), Shahid,
Kalimullah and Tariq. He, had added that the said were the murderers of his son and of Farooq Shafi and
that they be arrested. This is how Rafique respondent and others came to be the accused persons of the
present case.

3. Having remained a fugitive at law for more than Two Years, the above-mentioned Tariq, a co-accused
of the present respondent surfaced directly before the Lahore High Court and without having first
approached the Court of Session for the purpose, prayed for his release on Bail Before Arrest in a Double
Murder Case. Through an order dated 27.10.2008 passed in Cr.Misc.No. 9006-B of 2008, the learned
High Court granted him the said relief, inter-alia, on the ground that the right side of his body stood
paralyzed and that he could not even walk without the help of another person.

4. Within One Week of the grant of the said bail before arrest to the said Tariq co-accused, Rafique
respondent who had also remained an absconder and a proclaimed offender for about 2« years also
surfaced and again, directly before the Lahore High Court, without having first had recourse to the Court
of Session and he also prayed, through his application dated 04.11.2008, for his release on bail before
arrest. The said relief was allowed to him also through an order dated 19.12.2008 passed in Cr. Misc. No.
10599-B of 2008 whereby the interim pre-arrest bail allowed to him earlier, was confirmed.

5. Rana Arshad complainant is now before us seeking cancellation of the said pre-arrest bail allowed to
the said Rafique accused in which matter notices had been issued to the said Rafique respondent as also
to State.

6. Learned counsel for the parties have been heard.

7. It is natural and clearly understandable that on account of passage of time, certain concepts tend to
get foggy and blurred and hence the need to keep reminding ourselves, constantly, of the basic norms
regulating such-like matters. It appears to us that it was time to re-state the fundamentals relating to
the matters of bail before arrest. Therefore, before going on to the merits of this case, we consider that
it would be in the fitness of things if the parameters defined for the purpose were re-enumerated.
8. It was perhaps for the first time in December, 1948 that by interpreting the latter part of Section 498
of the Code of Criminal Procedure in Hidayat Ullah Khan's case (PLD 1949 Lah. 21= AIR 1949 Lah. 77), the
power vesting in the High Courts and the Courts of Session to admit persons to bail before they could be
arrested, was authoritatively discovered by a Full Bench of the Lahore High Court. Cornelius J. (as he
then was) epitomised the said power and its bounds in the following words:

"For the reasons given above, the reply which I would give to the question referred to us is that, in a
proper case, the High Court has power under Section 498, Criminal Procedure Code, to make an order
that a person who is suspected of an offence for which he may be arrested by a police-officer or a Court,
shall be admitted to bail. The exercise of this power should, however, be confined to cases in which, not
only is good prima facie ground made out for the grant of bail in respect of the offence alleged, but also,
it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all
probability, be made not from motives of furthering the ends of justice in relation to the case, but from
some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such
an eventuality suffer irreparable harm."

9. Ever since then, the said interpretation so made, the said powers so found and the parameters so
prescribed, have been regularly and repeatedly coming up for scrutiny by the Superior Courts including
this Court. But each time the matter was re-examined, the same was only re-affirmed. The said concept
as it was initially propounded; as it developed and as the same stands today, may be summarized for the
benefit of us all as under--

(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to
protect innocent persons against victimization through abuse of law for ulterior motives;

(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;

(c) bail before arrest can not be granted unless the person seeking it satisfies the conditions specified
through sub-section (2) of Section 497 of Code of Criminal Procedure i.e. unless he establishes the
existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against
him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;

(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior
motives, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace
and dishonour him;

(e) such a petitioner should further establish that he had not done or suffered any act which would
disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not
been a fugitive at law; and finally that;

(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before
arrest, must, in the first instance approach the Court of first instance i.e. the Court of Session, before
petitioning the High Court for the purpose.

10. This is then, the frame-work within which and the guidelines according to which, the said
jurisdiction vesting in the High Courts and the Courts of Session, is to be exercised. In identifying the
above prescribed principles, we sought guidance, inter alia, from:--

(i) THE CROWN VS. KHUSHI MUHAMMAD (PLD 1953 F.C. 170)
(ii) MUHAMMAD AYUB VS. MUHAMMAD YAQUB (PLD 1966 S.C. 1003)

(iii) SADIQ ALI VS. THE STATE (PLD 1966 S.C. 589)

(iv) ZAHOOR AHMAD VS. STATE (PLD 1974 Lah. 256) (cited with approval in PLD 1983 S.C. 82)

(v) MUHAMMAD ANWAR SAMMA & ANOTHER VS. THE STATE (1976 SCMR 45)

(vi) MURAD KHAN VS. FAZAL-E-SUBHAN & ANOTHER (PLD 1983 S.C. 82)

(vii) MUHAMMAD SAFDAR & OTHERS VS. THE STATE (1983 SCMR 645)

(viii) ZIA-UL-HASSAN VS. THE STATE (PLD 1984 S.C. 192)

(ix) MST. QUDRAT BIBI VS. MUHAMMAD IQBAL & ANOTHER (2003 SCMR 68)

11. Having said this, we now proceed to consider the impugned bail granting order.

12. Rafique respondent, according to the said order, had sought bail:

"... mainly on the ground that the case of co-accused of the petitioner, namely, Tariq Mahmood is not
distinguishable who had already been admitted to pre-arrest bail by this Court...."

The finding of the Court was that:

"Co-accused of the petitioner, namely, Tariq Mahmood who was involved in this case through the same
supplementary statement with the role equivalent to that of the petitioner had already been admitted
to pre-arrest bail.... For the reasons find mentioned in the said order on the factual aspect, the case of
the petitioner is not distinguishable."

This then necessitates an examination of the order allowing bail before arrest to the said co-accused of
Rafique respondent, namely, Tariq.

13. What transpires from a perusal of the order dated 27.10.2008 passed in Cr. Misc. No. 9006-B of
2008 (available at page 45 of the paper book) admitting the said Tariq accused to bail was that--

(a) not a word had been said as to why his petition had been directly entertained in the High Court and
why he had not been asked to go to the Court of Session in the first instance;

(b) again, not a word had been said about any ulterior motive which could have prompted the
fabrication of a false and malicious case against him only to victimize, disgrace or dishonour him;

(c) it was found that the right side of his body stood paralysed; that he could not even walk without the
help of another person and that he was consequently a sick and an infirm person whose case fell within
the purview of the 1st Proviso to sub-section (1) of Section 497 Cr.P.C. It may be added that the case of
Rafique respondent was distinguishable as this ground of infirmity was not available to him;

(d) it had also be found that he had not been named as the assailant in the FIR and that it was only
through a subsequent supplementary statement that he had been nominated as one of the four who
had fired shots at the two deceased persons and consequently, his case was one of further inquiry
qualifying for grant of bail under sub-section (2) of Section 497 Cr.P.C; and
(e) the issue of the said accused having been a fugitive at law for more than two years had been
brushed aside by the High Court saying that he had admittedly got afflicted by paralysis in October, 2006
and could not even move without the help of another person and how "A Person In Such A Condition
Would Manage To Escape His Arrest For Almost Two Years" and thus putting the blame on the police for
not arresting him, the learned JUDGE wondered ".... As To Why The Police Had Failed To Arrest The
Petitioner For Almost Two Years." His Lordship, however, appears to have failed to appreciate that one
did not need to use his feet and his legs to escape or to abscond or even to go into hiding.

14. As has been mentioned in Para 9 supra, the rule is that a person seeking pre-arrest bail must, in the
absence of some compelling reasons, approach the Court of Session in the first instance. This had not
been so done in the present case and not a word had been said by the High Court for allowing such a
deviation from the normal procedure. It could be presumed that the High Court might have permitted
the said departure on account of the physical disability of Tariq accused. But even such a presumption
would not be sufficient to justify the said digression from the said established principle of law as it was
on record that Tariq accused was a resident of Kamoke and if he could have travelled to Lahore in his
said physical condition then there was nothing stopping him from traveling, more or less the same
distance, to the Court of Session at Sialkot. As has been mentioned above, even the said presumed
ground did not exist in the case of Rafique respondent.

15. It had also been repeatedly held by the Superior Courts (reference be made to Zia-ul-Hassan's case
supra) that no Court would have any power to grant pre-arrest bail unless all the conditions specified
for allowing bail before arrest Especially the condition regarding malafides were proved. No such finding
exists in the said bail granting orders. On the contrary, while talking about the disappearance of Tariq
accused for more than two years after his nomination as an accused, the Hon. Judge found that the said
accused was in no condition to escape arrest or to abscond and it was the police which had not caused
his arrest for such a long period of time which observation obviously established absence of ulterior
motives on the part of the police.

16. On the merits of the case, the learned Judge in Chamber presumed, from the motive alleged in the
FIR i.e. litigation between the parties over a plot of land, that the complainant physically knew the
accused party despite which he had not named them as the killers of his son and of another and had
nominated Rafique accused and others only through a supplementary statement, as an after-thought,
about a month after the occurrence. The said alleged conduct of the complainant, in the opinion of His
Lordship, had:

"... cast shadow of doubt on prosecution case ...."

The Hon. Judge appears to have been led to this finding, as has been mentioned above, on account of
the said litigation relating to a plot of land. His Lordship had observed in Tariq's bail granting order that:

".... This means Muhammad Rafique was known to the complainant when this occurrence had taken
place and the FIR is silent about the accused qua his presence on the spot at the relevant time...."

In the impugned order granting bail to Rafique accused, the learned Judge was more emphatic and had
observed:
".... The data available on the record speak volumes that the petitioner was known to the complainant
much prior to the occurrence and had the petitioner been present at the spot the complainant would
definitely have named him in the FIR...."

17. We called upon the learned ASC for Rafique accused-respondent to show us anything from the
record which could establish that the complainant had ever come into contact with Rafique accused or
his brothers or their father which could lead to an inference that they were identifiably known to the
complainant. Nothing of the kind could be pointed out for the purpose. On the contrary, the learned
counsel for the complainant drew out attention to the addresses of the parties available on record and
submitted that the complainant was a resident of Sambrial in District Sialkot while Rafique accused and
his family were residents of Kamoke in District Gujranwala. He also referred us to an `IQRARNAMA'
available at page 37 of the paper book and submitted that it was only on 20.5.2006 i.e. less than a
month before the occurrence that the complainant had bought the plot in question situated in Kamoke
from one Muhammad Arif. Explaining the litigation in question, the learned ASC referred to a plaint
(available at pages 33 to 35 of the paper book) which had been filed by Rafique accused and his brothers
in the Court of the learned Senior Civil Judge, Gujranwala on 23.5.2006 i.e. only about three weeks prior
to occurrence, with respect to the said plot. The complainant was not a party to the said suit and it was
only the said Arif who was the only defendant cited in the said plaint and about whom it had been
alleged that he had tried to forcibly dispossess the plaintiffs therefrom. One week thereafter, it was
again the said Arif (the seller of the said plot) who had lodged an FIR at P.S. Kamoke against the Rafique
accused party with respect to the plot in question.

18. What thus emerges is that the litigation in question was of a rather recent origin i.e. less than a
month old when the occurrence took place; that the complainant might well have been interested in the
out-come of this litigation but was not directly a party to the same; that on account of the rather early
stages of this litigation, occasion may never had arisen yet where the complainant could have come face
to face with Rafique accused party and that in the circumstances, to hold that evidence was available in
abundance to prove that the complainant knew the accused party at the time of the present
occurrence and thereby to declare that the prosecution case had become doubtful and consequently
one of further inquiry, was not a reasonably deducible inference.

19. There is yet another aspect of the matter which may also be noticed. The complainant had
mentioned in the FIR that he was in litigation with Rafique accused party over a plot of land and that he
had been even receiving threats from them. Despite this he had frankly conceded, through the said FIR
that he did not know the ones who had done his son to death. This, at least prima-facie, shows honesty
and good faith on his part because if he was to be malicious then there was nothing stopping him from
nominating his said alleged enemies, as the killers of his son, in the very FIR itself. It may be added that
as per the FIR, the complainant was an advocate who would thus be expected to know the implications
of not naming the assailants in FIR and the consequences of naming them subsequently through a
supplementary statement.

20. What follows from the above is:--

(a) that the prosecution case could not be said to have become doubtful only because the accused had
not been named in the FIR and had been nominated subsequently through a supplementary statement;
(b) that the case was not one where it could be said that the same had been fabricated on account of
ulterior motives either on the part of the police or even on the part of the complainant;

(c) that the concessions extended to Tariq accused on account of his physical disability could not be
made available to Rafique accused who was a perfectly healthy person;

(d) that no explanation existed on record for granting the extra-ordinary relief of bail before arrest and
that also in a double murder case, to a person i.e. Rafique accused who was a proclaimed offender and
who had been a fugitive at law for more than two years; and

(e) that no reason was available in the impugned order or even on record which could justify a direct
approach to the High Court for grant of pre-arrest bail without moving the Court of Session for the
purpose.

21. In this view of the matter, the discretion exercised by the High Court in admitting Rafique
respondent to bail before arrest through the impugned order was not sustainable. Consequently, this
petition is converted into an appeal which is allowed as a result whereof the said bail granted to Rafique
respondent through an order dated re-called. He may be taken into custody in accordance with law if it
is so desired.

22. These are then the reasons for the short order passed on 26.3.2009.

23. But we may add before parting that we had felt compelled to go into the merits of the case as we
did on account of the lengthy arguments of the learned counsel for the parties and on account of some
of the observations made by the High Court. It is, however, clarified that the above conclusions reached
by us were only for the disposal of this bail matter and should not be taken as ultimate findings on the
merits of the case.

24. We would also like to bring it on record that it was on account of the admitted physical disability of
Tariq co-accused that we exercised restraint in issuing a notice to him for re-call the bail allowed to him.

(R.A.) Appeal allowed.