Pre-arrest bail is an extraordinary relief, says SC

Says pre-arrest bail cannot be used as a substitute or as an alternative for post-arrest bail

ISLAMABAD:

Laying down parameters for pre-arrest bails, the Supreme Court has held that grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimisation through abuse of law for ulterior motives.

"Pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail," said a six-page order authored by Justice Muhammad Ali Mazhar.

Justice Mazhar was part of a division bench—led by Justice Munib Akhtar—that dismissed a pre-arrest bail application of a person accused of beating up his father

According to the FIR lodged by Mehboob Ali, his sons—Ahtisham, Arsalan—and his four daughters were forcing him to sell a property and to distribute the money among them.

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He alleged that last year his sons and daughters beat him and his wife and threw them out of his house. Later on, the complainant entered his house with the help of the deputy commissioner. He alleged that in his absence his children had stolen precious articles, cash and the original file of the house.

According to him, on March 27, 2022 at 4:30 pm, while he was chatting with his relatives as mentioned in the FIR, two persons—Shahzad and Shamshad, who are illegally residing in the first floor of his house—attacked the complainant’s daughter-in-law and brother with heavy sticks and also caused injuries to the complainant’s nephew, Arish, who was then taken to Jinnah Hospital for treatment.

The complainant later lodged an FIR under Sections 324, 380, 427, 337-A(i), 337-F(i) and 34, PPC against the petitioner, another son Arsalan and two other persons—Jamshed Ali and Shahzad—for stealing household articles, illegal possession of the house and causing injuries to his relatives.

The judgement noted that no specific details of any mala fide intention or ulterior motives have been provided in the petition to explain why a father set the law into motion against his own sons and lodged a false criminal case against them.

"On the contrary, the complainant (father) with severe pain and agony explained all the facts of maltreatment, cruelty and harsh attitude of a son towards his parents.

"The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of the accused in the crime.

Sufficient material is present to demonstrate the petitioner’s involvement in the case without any reasonable doubt and the expression ‘reasonable grounds’ refers to grounds which may be legally tenable, admissible in evidence and appealing to a reasonable judicial mind as opposed to being whimsical, arbitrary or presumptuous.”

It said the petitioner also failed to demonstrate that his father wanted his arrest for ulterior motives or to cause him any humiliation or to disgrace him in the public at large.

"It is an Islamic command to honour one’s parents and obey them; respect their opinion and to be kind to them instead of mistreating them, misbehaving, or adopting a harsh attitude towards them.

"The role or significance of a father figure is very pivotal and deep-rooted in the family system and nothing alleged before us to substantiate in true terms that the complainant has lodged the false crime report against his sons for any ulterior motives or with mala fide intention"

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The judgment noted that bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure.

“[Such bail cannot be granted] 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…

“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…

“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…

“Finally 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, ie, the court of sessions, before petitioning the high court for the purpose."