SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Manzoor Ahmad Malik
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Amin-ud-Din Khan
Crl. Petition No.801-L of 2020
(Against the order of the Lahore High Court, Lahore
dated 03.03.2020, passed in Crl. Misc. No.7155-B of 2020)
Shahzada Qaiser Arfat @ Qaiser
…Petitioner(s)
versus
The State, etc.
…Respondent(s)
For the petitioner(s): Mr. M. Sohail Dar, ASC
a/w petitioner in person.
Respondent No.2: In person
For the State: Mr. Khurram Khan, Addl. P.G.
a/w Humayun Rashid, SI
Date of hearing: 03.02.2021
JUDGMENT
Syed Mansoor Ali Shah, J.-
Crl.M.A. No. 310/2020: This is an application for condonation of delay.
For the reasons given therein, the same is allowed, and the delay in filing
the main petition is condoned.
Crl. Petition No.801-L of 2020
2. On December 7, 2019 at about 12 a.m., three persons were
shot dead on G.T. Road in Ferozewala, District Sheikhupura. Five
brothers and three unknown persons were nominated in the first
information report (“FIR”)1 to be the assailants; while their sixth brother,
Qaisar (“petitioner”) and their father were nominated as abettors, alleged
to have instigated and conspired the murders. As Shabbir Hussain (one
of the deceased) was involved in the murder of their seventh brother,
Asim, the motive alleged was that they wanted to avenge the murder of
their seventh brother. Accused Qaisar, the alleged abettor, is the
petitioner before us. The Court of Sessions and High Court have
dismissed his petitions for pre-arrest bail. The order dated 03.03.2020 of
1
FIR No.1441/19, dated 07.12.2019, P.S. Ferozewala, district Sheikhupura, offences u/s 302, 148, 149 and
109 PPC.
Crl. Petition No.801-L/2020 2
the High Court has been impugned before us through the present
petition.
3. Learned counsel for the petitioner has submitted that the
Hon’ble High Court has failed to appreciate the malafide of the
complainant in nominating all the male family members of the accused
persons, and the material prime facie showing non-involvement of the
petitioner in the alleged offence, i.e., the entries in the passport of the
petitioner according to which he was not in Pakistan on the day of
occurrence. On the other hand, learned counsel for the State has
opposed this petition.
4. We have heard the learned counsel for the parties and
perused the record of the case. The High Court has declined the relief of
pre-arrest bail to the petitioner making the observation that pre-arrest
bail is an extra-ordinary relief and can only be extended to an innocent
person who is implicated in the case on the basis of malafide, but the
petitioner has failed to point out to any malafide. The learned High
Court did not appreciate that the “malafide” being a state of mind cannot
always be proved through direct evidence, and it is often to be inferred
from the facts and circumstances of the case.2
5. No doubt, a police officer has, under Section 54 of the CrPC,
the power to arrest a person who has been involved in any cognizable
offence or against whom a complaint has been made or credible
information has been received or a reasonable suspicion exists of his
having been so concerned. Having the power to arrest is one thing but
the justification for the exercise of that power is quite another. A police
officer that makes arrest of a person must be able to justify the exercise
of that power in making the arrest apart from his having the power to do
so. He cannot make arrest of a person, only because he has the power to
do so. He must also show sufficient grounds for making the arrest.
Article 4(1)(j) of the Police Order, 2002 states this legal position when it
prescribes that it is the duty of every police officer to "apprehend all
persons whom he is legally authorised to apprehend and for whose
apprehension sufficient grounds exist". And Rule 26.1 of the Police
Rules, 1934 explains this by providing that the authority given under
Section 54 of the CrPC to the police to arrest without a warrant is
permissive and not obligatory. As per the said Rule whenever escape
2
See Khalil Ahmed v. State, PLD 2017 SC 730.
Crl. Petition No.801-L/2020 3
from justice or inconvenient delay in completion of the investigation or
commencement of the trial is likely to result from the police failing to
arrest, they are bound to do so, but in no other cases. “Ordinarily no
person is to be arrested straightaway only because he has been
nominated as an accused person in an FIR or in any other version of the
incident brought to the notice of the investigating officer by any person
until the investigating officer feels satisfied that sufficient justification
exists for his arrest.”3 The investigating officers should not mechanically
make the arrest of a person accused of having committed a cognizable
offence, rather they must exercise their discretion in making the arrest of
such person judiciously by applying their mind to the particular facts
and circumstances of the case and consciously considering the question:
what purpose will be served and what object will be achieved by arrest of
the accused person?
6. The power of the High Courts and the Courts of Sessions to
grant pre-arrest bail, first and foremost, must be examined in the
constitutional context of liberty, dignity, due process and fair trial. Pre-
arrest bail is in the nature of a check on the police power to arrest a
person. The non-availability of incriminating material against the
accused or non-existence of a sufficient ground including a valid
purpose4 for making arrest of the accused person in a case by the
investigating officer would as a corollary be a ground for admitting the
accused to pre-arrest bail, and vice versa.5 Reluctance of the courts in
admitting the accused persons to pre-arrest bail by treating such a relief
as an extraordinary one without examining whether there is sufficient
incriminating material available on record to connect the accused with
the commission of the alleged offence and for what purpose his arrest
and detention is required during investigation or trial of the case, and
their insistence only on showing malafide on part of the complainant or
the Police for granting pre-arrest bail does not appear to be correct,
especially after recognition of the right to fair trial as a fundamental right
under Article 10A of Constitution of Pakistan, 1973.6 Protection against
3
See Sughran Bibi v. State, PLD 2018 SC 595 (7-MB).
4
Pre-trial detention should be the exception reserved only for situations where the likelihood exists that the
accused would abscond, destroy evidence, influence witnesses, avoid investigation, flee from the
jurisdiction of the state or is likely to repeat the crime due to his past record _Bail & Liberty- by Reema
Omar, The Dawn , 22.06.2019
5
Also see 2014 SCMR 1349.
6
“While incorporating Article 10A in the Constitution and making the right to a ‘fair trial’ a fundamental
right the legislature did not define or describe the requisites of a 'fair trial'. By not defining the term the
legislature, appears to have given to it the same meaning as is broadly universally recognized and also
embedded in our own jurisprudence.” (Suo Motu Case NO.4 OF 2010, PLD 2012 SC 553 (7-MB), per
Nasir-ul-Mulk, J.)
Crl. Petition No.801-L/2020 4
arbitrary arrest and detention is part of the right to liberty and fair trial. 7
This Court has, in many cases,8 granted pre-arrest bail to accused
persons after finding that there are no reasonable grounds for believing
their involvement in the commission of the alleged offences and has not
required independent proof of malafide on part of the Police or the
complainant before granting such relief.9 Despite non-availability of the
incriminating material against the accused, his implication by the
complainant and the insistence of the Police to arrest him are the
circumstances which by themselves indicate the malafide on the part
of the complainant and the Police, and the accused need not lead any
other evidence to prove malafide on their part.
7. It is the case of the petitioner that he alongwith his father
were in Saudi Arabia for performing Umra when the occurrence took
place. No doubt, managing one’s presence in a foreign country at the
time of actual commission of an offence may be a tactic to escape
criminal liability for being involved in the commission of that offence as
abettor or conspirator; but the court must base its conclusion as to
involvement of an absentee accused as abettor or conspirator on some
solid material collected during the course of investigation, and not on
surmises or conjectures, either tentatively at bail stage or finally at
judgment stage. It is true that a conspiracy to commit a crime by its very
nature is usually secret, and cannot be proved by direct evidence in most
cases. It, however, does not mean that the prosecution is absolved from
its duty to prove the allegation of conspiracy, or that mere allegation of
conspiracy is sufficient for holding the accused liable. In case of non-
availability of direct evidence, the police must collect during
investigation, and the prosecution must lead during trial, such
circumstantial evidence from which a court could draw a legitimate
interference of the existence of conspiracy and involvement of the
accused in that conspiracy.
8. The material available as to the alleged involvement of the
present petitioner in hatching alleged conspiracy of committing murder
of the deceased persons, so far as the FIR is concerned, is confined to
mere allegation of conspiracy /abetment without disclosing any details of
7
See What Is A Fair Trial: A Basic Guide to Legal Standards and Practice, published by Lawyers
Committee for Human Rights, USA (2000).
8
See Muhammad Fayyaz v. State, 1976 SCMR 183; Zakaullah v. State, 1987 SCMR 1720; Zakia Begum
v. State, 1991 SCMR 297; Bashir Ahmad v. State, 1993 SCMR 919; Muhammad Gul v. State, 1998 SCMR
576; Dildar Ali v. State, 1999 SCMR 1316; Rizwan Iqbal v. State, 2007 SCMR 1392.
9
See also Meeran Bux v. State, PLD 1989 SC 347; Muhammad Firdaus v. State, 2005 SCMR 784,
Darbar Ali v. State, 2015 SCMR 879,; Aqsa Safdar v. State 2019 SCMR 1923.
Crl. Petition No.801-L/2020 5
such conspiracy/abetment, such as place and time of the alleged
conspiracy/abetment and names of the persons who heard such
conspiracy/abetment. However, later on the Police recorded statements
of certain persons, under Section 161 CrPC wherein they have stated
that while passing through the Bazar outside the house of the accused
persons in the night of 18 and 25 November, 2019, they overheard the
accused persons say that they would take revenge of the murder of their
brother from Shabbir Hussain. It is not the case of the prosecution that
the petitioner was present at the spot or he caused any injury to any
deceased or anybody else and in such circumstances there is no chance
of any recovery at the instance of the petitioner if he is arrested. All the
incriminating material against the petitioner is already with the
prosecution.
9. In the circumstances, we find it a fit case for exercise of
discretion to admit the petitioner to pre-arrest bail to save him from
unjustified arrest, consequent humiliation and the curtailment of his
right to liberty. We, therefore, convert this petition into appeal and allow
the same.
10. These are the reasons of our short order of even date, which
is reproduced hereunder for ready reference:
“For reasons to be recorded later, the instant criminal
petition is converted into an appeal and the same is
hereby allowed. Petitioner Shahzada Qaiser Arafat @
Qaiser is allowed pre-arrest bail subject to his
furnishing bail bond in the sum of Rs.100,000/-
(Rupees one hundred thousand) with one surety in the
like amount, to the satisfaction of the trail
Court/Illaqa Magistrate, within fifteen days."
Judge
Judge
Lahore,
3rd February, 2021.
Approved for reporting
Iqbal/* Judge
