So far as the applicability of Section 324 PPC is concerned that
will be determined by the learned trial Court after recording
and evaluating the evidence. At this stage, the case of the
petitioner squarely falls within the remit of further inquiry
contemplated under sub-section (2) of section 497 Cr.P.C. I am
guided by case law titled as “Fareed Niaz Versus the State and
another” (2021 SCMR 1467).
2
5. Learned Deputy Prosecutor General assisted by learned
counsel for the complainant has argued with vehemence that the
petitioner has failed to point any mala-fide or ulterior motive on the
part of complainant as well as police which is sine qua non for
confirmation of pre-arrest bail. I am not in agreement with these
arguments as it has been well settled by now that it is not possible in
each and every case to prove the malafide but same can be gathered
from the facts and circumstances of the case. I fortify my view from
the dictum laid down in case titled as “Khalil Ahmed Soomro vs. The
State” (PLD 2017 SC 730), wherein the following principle has been
enunciated:-
“Although for grant of pre-arrest bail one of the pre-
conditions is that the accused person has to show that his
arrest is intended by the prosecution out of mala fide and
for ulterior consideration. At pre-arrest bail stage, it is
difficult to prove the element of mala fide by the accused
through positive/solid evidence/materials and the same is
to be deduced and inferred from the facts and
circumstances of the case and if some events-hints to that
effect are available, the same would validly constitute the
element of mala fide.”
Likewise, in the case of “Shahzada Qaiser Arfat alias Qaiser V.
The State and another” (PLD 2021 SC 708), the Apex Court of the
country was pleased to observe as under:-
“….The non-availability of incriminating material against the
accused or non-existence of a sufficient ground including a valid
purpose 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.
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 10-A of
Constitution of Pakistan, 1973. Protection against arbitrary arrest
and detention is part of the right to liberty and fair trial. This
Court has, in many cases, 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
offence and has not required independent proof of malafide on
part of the Police or the complainant before granting such relief.
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 part of the complainant and
the Police, and the accused need not lead any other evidence to
prove malafide on their part….
