Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 Supreme Court 427)

Supreme Court of Pakistan

Rana Muhammad Arshad v. Muhammad Rafique and another
Criminal Petition No. 25 of 2009
Decided on: 26th March, 2009
Cited as: PLD 2009 Supreme Court 427

Facts:

The petitioner, Rana Muhammad Arshad, lodged FIR No.305/2006 at Police Station Sambrial, District Sialkot, alleging that unknown assailants in a black Honda car opened fire on the vehicle of his son, resulting in his death and that of his companion. Although the complainant suspected that his adversaries—Faqir Muhammad and his sons—were involved due to a property dispute, he did not name anyone in the FIR as the attackers were not identifiable at that time.

Subsequently, about a month later, the complainant submitted a supplementary statement nominating Muhammad Rafique and others as the accused. Rafique, who had been a proclaimed offender for over two years, directly approached the Lahore High Court seeking pre-arrest bail, which was granted on the basis that a co-accused, Tariq, had been granted similar relief earlier due to physical infirmity (paralysis). The complainant challenged the High Court’s order before the Supreme Court seeking cancellation of Rafique’s pre-arrest bail.

Issue:

Whether the extraordinary relief of pre-arrest bail can be granted to an accused who had remained a fugitive from law, without establishing mala fide intention behind the arrest or fulfilling the legal conditions prescribed under Section 498, Cr.P.C.?

Analysis:

The Supreme Court reiterated that the grant of bail before arrest is an extraordinary relief, to be extended only in exceptional circumstances where an arrest is sought for ulterior motives or to cause irreparable harm. The Court restated and reaffirmed the settled framework and guidelines governing pre-arrest bail jurisdiction under Section 498, Cr.P.C., originally evolved in Hidayat Ullah Khan’s case (PLD 1949 Lah. 21) and consistently approved in subsequent precedents.

The Court outlined the following principles:

1. Pre-arrest bail is an extraordinary remedy meant to protect against victimization through misuse of law, not a substitute for post-arrest bail.
2. It cannot be granted unless the accused proves reasonable grounds for believing in his innocence and demonstrates that the intended arrest is based on mala fide motives.
3. The accused must show that his arrest would cause irreparable humiliation or injury.
4. Relief cannot be granted to those who have a criminal background or have absconded.
5. Normally, the accused must first approach the Court of Session unless compelling circumstances justify a direct petition before the High Court.

The Supreme Court found that Rafique had remained a fugitive for over two years and had bypassed the Court of Session without justification. No evidence existed showing mala fide intention on the part of the police or the complainant. The Court also noted that the High Court erred in equating Rafique’s case with that of his co-accused Tariq, whose physical disability had justified special consideration.

The Court further observed that the prosecution case could not be declared doubtful merely because the accused was not named in the FIR and was later nominated through a supplementary statement. It emphasized that the complainant’s omission to name his adversaries in the FIR, despite acknowledging a prior dispute, demonstrated honesty rather than malice.

Conclusion:

The Supreme Court held that the High Court had exercised its discretion improperly in granting pre-arrest bail to a proclaimed offender without establishing mala fide motives or fulfilling the statutory preconditions of Section 498, Cr.P.C. The petition was converted into an appeal and allowed, and the order granting pre-arrest bail to Rafique was recalled.

Guidelines laid down:

• Pre-arrest bail is an extraordinary remedy, not to be granted as a matter of routine.
• The accused must prove both prima facie innocence and mala fide intention behind the arrest.
• A fugitive from law cannot claim equitable relief.
• The Court of Session is the proper forum of first instance for pre-arrest bail.

Accordingly, the respondent Rafique was directed to be taken into custody in accordance with law.