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I have the privilege to read the bail refusing order authored by my 
learned brother Mr. Justice Manzoor Ahmad Malik concurred by Mr. 
Justice Amin-ud-Din Khan. With utmost respect, I disagree with the 
reasonings hence, render my own findings. 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.:- Petitioners have 
assailed jurisdiction of this Court under Article 185(3) of Islamic 
Republic of Pakistan, 1973 seeking leave to appeal against the order 
of Single Bench of Lahore High Court (Multan Bench) dated 
30.10.2019 by which ad-interim bail granted vide order dated 
14.10.2019 was recalled with a prayer to grant anticipatory bail to 
the petitioners in the interest of safe administration of criminal 
justice. 
2. 
 
As per contents of the crime report bearing FIR 
No.191/2019 dated 27.05.2019, offences u/s 324, 452, 354, 148, 
149 PPC registered with police station Sahuka, Burewala, it is 
alleged that 18 accused duly mentioned while 12 unknown variously 
armed came to the house of complainant. They hurled threats of 
dire-consequences and thereafter resorted to indiscriminate firing. It 
is further alleged that they trespassed into the house of 
complainant. Mehmood Khan accused raised "lalkara" upon which 
Athar Farooq fired with pistol .30 bore hitting Muhammad Mumtaz 
on right arm whereas fire shot made by Mehmood Khan had hit on 
right leg of a buffalo. Women folk belonging to complainant, 
Manzooran Bibi, Rashidan Bibi, Sonia Bibi and Khalida Bibi 
attracted to spot to rescue, they were given beating as a 
consequence they suffered injuries, clothes worn by them were also 
alleged to have been torn which made them naked. Thereafter all 
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the accused again indulged in aerial firing which had hit boundary 
walls and houses of the complainant party. The motive behind the 
occurrence is dispute over agricultural land. 
3. 
 
The crux of the arguments advanced by learned counsel 
for the petitioners is that there is delay of 12 hours in lodging FIR for 
which no plausible explanation has been rendered. Contends that 
the story advanced by the prosecution is not convincing as it does 
not appeal to reason, rather it has been aggravated by the 
prosecution. Allegation that 30 persons in furtherance of their 
common intention had attacked, however, only one person sustained 
single fire shot on non-vital part seems to be absurd, said injury   
was ultimately declared under section 337F(iii) PPC, which entail 
maximum punishment for 3 years as per statue, whereas the rest of 
the PWs sustained simple injures which are bailable in nature. It is 
argued that the allegation of entering into the house of complainant 
was found false during the course of investigation and as such Sec. 
452 PPC was deleted, which has not been challenged. It is further 
apprised that the accused party called in question the medico-legal 
report of firearm injury being a fabricated document. A petition in 
this regard was filed which was allowed. Consequently medical 
board was constituted in pursuance of the order of Judicial 
Magistrate dated 14.06.2019.The Medical Board summoned injured 
PW but he escaped appearance on 08.07.2019, 27.07.2019 and 
01.08.2019. In this scenario possibility of fabrication as alleged by 
the accused party cannot be ruled out. The question of vicarious 
liability in the given circumstances has lost its sting too; hence, same 
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would be resolved after recording of evidence before the learned trial 
court. 
4. 
 
On the other hand, learned Additional Advocate General 
resisted the grant of pre-arrest bail on the ground that 20 empties 
were recovered and as such recovery of weapon has to be affected. 
It is a case of common object; therefore, each of them is vicariously 
liable for the act of others and the petitioners cannot be granted 
extra-ordinary relief, hence, prayed for its rejection.  
5. 
 
This Court is conscious of the fact that concept of pre-
arrest bail is an extra-ordinary relief, which is limited to rare cases 
based upon trumped-up charges rather it has to be extended 
sparingly. To avail such relief, it is obligatory to establish that the 
prosecution has been launched, which is based upon malafides, 
ulterior motives and if it is materialized, it would certainly cause 
irreparable loss to his reputation. The practice to grant ad-interim 
bail is extension of such a remedy to act as a shield to protect 
innocent person facing highhandedness of individuals or authority 
against frivolous litigation. Literally speaking the term ad-interim is 
a misnomer as it has fallen in practice. It is worth mentioning that 
ad-interim is not mentioned in any provision rather this idea has 
been derived from the Order XXXIX Rules 1&2 of Code of Civil 
Procedure, 1908 (“Code of 1908).The rationale to grant ad-interim 
bail is though synonymous to passing a prohibitory injunction, 
however, the concept of ad-interim bail is more precious as compare 
to prohibitory injunction.  In the former, liberty of the person is 
involved whereas in the latter, only propriety rights are in question. 
The status of the accused becomes “custodia legis” during the period 
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when ad-interim bail is granted till its final adjudication subject to 
furnishing of sureties to the satisfaction of the Court. Reliance is 
placed upon judgment of Full Bench reported as Shabbir Ahmad v. 
The State (PLD 1981 Lahore 599). 
 
The provision of Sec.497(2) Cr.P.C confers powers upon 
the Court to grant bail during investigation, enquiry or trial subject to 
an opinion is formed by the Court that material placed before it is 
not sufficient to establish guilt and it still requires further inquiry into 
his guilt whereas Section 498 Cr.P.C deals with two situations:- 
i) 
The fixation of the amount or bond according to the 
circumstances; 
 
ii) 
Conferment of powers to grant bail to a person who is 
not in custody; 
 
   
 
Although the provision of Section 498 Cr.P.C is neither 
ancillary nor subsidiary to Section 497 Cr.P.C but is an independent 
Section, however, bare reading of language of sub-section (2) of 
Section 497 Cr.P.C provide considerations for grant of bail by virtue 
of section 497(2) Cr.P.C it practically merged section 497/498 
Cr.P.C. into one aspect qua concept of pre-arrest bail persuading it to 
act conjointly in all fairness. The practice for grant of extra-ordinary 
relief has passes through transitory period with divergent 
interpretation qua its scope since its inception, however, law is not 
static rather it is growing day by day.   This Court while handing 
down a salutary judgment titled as "Meeran Bux vs. The State and 
another" (PLD 1989 Supreme Court 347) enunciated the concept 
of pre-arrest bail which was more innovative, liberal, crafted in 
consonance with the intent of legislature, hence, it has conceptually 
widened its scope in its entirety, elaborating its concept in the spirit 
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of section 497/498 Cr.P.C. It was reiterated in another judgment of 
this Court titled as “Syed Muhammad Firdaus and others v. The 
State (2005 SCMR 784). This Court virtually introduced a 
broadened mechanism of interpretation to adjudge the element of 
malafide or malice at the touch stone of merits of the case.  In the 
said case, mentioned above, the accused who was ascribed the 
injury to the deceased on leg (simple in nature) was granted pre-
arrest bail by Sessions Judge which was recalled by learned High 
Court while exercising suo-motu revisional jurisdiction, however, the 
order of learned Sessions Judge was restored by this Court while 
elaborating the principle in the above said terms. 
6.  
 
Keeping in view the facts and circumstances narrated 
above, it has made it abundantly clear that while granting pre-arrest 
bail, Court can consider the merits of the case in addition to element 
of malafides/ulterior motives which has to be adjudged in the light 
of law laid down by this Court in the case law stated supra. As a 
consequence, courts of law are under bounded duty to entertain 
broader interpretation of “law of bail” while interpreting material 
placed before it in more liberal manner to arrive at a conclusion 
which is badly required due to apparent downfall in the standard of 
investigation.  
 
Otherwise liberty of a person is a precious right which 
has been guaranteed under the constitution of Islamic Republic of 
Pakistan, 1973. To abridge or curtail the liberty merely on the 
ground of being involved in a criminal case without adjudging it on 
merits would certainly encroached upon the right against free life. 
This right should not be infringed, rather it has to be protected by 
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the act of Court otherwise it may frustrate the concept of safe 
administration of criminal justice.  
 7.  
 
The accumulative effect of the whole discussion and 
while seeking guidance from the above referred case law, this Court 
is of considered opinion that the petitioners have made out a case 
for grant of extraordinary relief of pre-arrest bail, hence are squarely 
entitled for the same. As a consequence this petition is converted 
into appeal and allowed accordingly.      
 
Judge 
 
Lahore 
07.07.2020 
Approved for reporting. 
Athar 
