1989 P Cr (PLP)

Abdur Razzaq had three injuries, out of which two were grievous. Abdul Wahid had one simple injury while Yahya had four injuries all simple in nature. Mahmood Ahmad, Muhammad Rafiq, Arshad Ali, Muzaffar Ahmad, Sultan Ahmad and Fazal Nur, respondents, were armed with guns while Muhammad Amin, and Safdar Hussain respondents had rifles. Respondents Nos. 1 to 6 are alleged to have fired their weapons causing injuries to the animals while Safdar Hussain and Fazal Nur raised Lalkaras and resorted to firing alongwith the other accused. Co‑accused Mahmud son of Sultan, Azmat Ali, Muhammad Afzal, Majad, Mansha, Nazir Ahmad, Khan Ahmad, Abdul Hamid and Abdul Manan are alleged to have caused injuries to the afore‑mentioned injured P.Ws.

3. Learned counsel for the petitioner contends that in the bail applications moved by the respondents it was nowhere alleged that the intended arrest was tainted with mala fides nor any contention to that effect was raised before the learned Additional Sessions Judge, therefore, the pre‑arrest bail allowed to them is liable to be cancelled on this short ground. He further submits that the respondents have disentitled themselves to enjoy the concession because after their release, all of them except Muhammad Amin advanced threats of death to the complainant party and a case under sections 148 and 506/149, P.P.C. was registered against them and a cross‑case for similar offences was registered against the complainant party and both sides have been challaned. It has been further submitted that on 4‑12‑1988 another case under sections 148 and 307/149, P.P.C. was registered against Safdar Hussain and Arshad Ali respondents and others for making murderous assault on Mst. Hanifan Bibi, mother of Muhammad Qasim who is uncle of Abdul Wahid petitioner. The learned State counsel also supports this petition for cancellation of bail. The learned counsel for hte respondents, on the other hand, submits that the mala fides on the part of police is manifest from the facts that:‑ (a) Safdar Hussain respondent had made an application before the Inspector‑General of Police for the transfer of the investigation from the local police; (b) Two persons from the accused side suffered injuries but the local police did not register the case against the complainant party till 6‑11‑1988 and ultimately the said case was cancelled without joining the respondents in the investigation; and (c) On a private complaint, filed by Safdar Hussain respondent, two members of the complainant party have been summoned by the learned Magistrate. It is, however, admitted that a case under sections 148 and 506/149, P.P.C. has been registered against all the respondents except Muhammad Amin after the registration of the present case and a cross‑case for similar offences was registered against the complainant party and both the sides have been challaned. It is also admitted that on 4‑12‑1988 case under sections 148 and 307/149, P.P.C. was also registered against Safdar Hussain and Arshad Ali respondents for murderous assault on Mst. Hanifan Bibi. The learned counsel, however, submits that the case registered at the instance of the accused party was prior in the. time and the Investigating Officer had come to the conclusion that the complainant party had initiated the trouble. It is further submitted that in the last mentioned case under section 307, P.P.C. fourteen persons were named as accused, out of which thirteen have been declared as innocent. 4. 1 have considered the submission made at the Bar in the light of material available on the record. It is not denied that in the applications made before the Sessions Court for the grant of pre‑arrest bail the plea of mala fides on the part of the police was not specifically taken nor any contention to that effect was raised during the arguments. The order passed by the learned Additional Sessions Judge is, therefore, clearly in violation of the principle laid down by the superior Courts for the grant of pre‑arrest bail. In Zia‑ul‑Hassan v. The State P L D 1984. SC 192 it was held: ‑ "The Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts from time to time are satisfied, the most essential of them all being that the intended arrest would be tainted with mala fides which must be specifically stated:" The pre‑arrest bail allowed to the respondents is, therefore, liable to be cancelled on this short ground. Furthermore, it is an admitted fact that a case under sections 148 and 506/149, P.P.C. has been registered against the respondents except Muhammad B Amin after the registration of the present case and a cross‑case for similar offences was registered against the complainant party and both sides have been challaned. The learned counsel for the respondents, however, submits that the case registered at the instance of the accused party was prior in time and the Investigating Officer had come to the conclusion that complainant party was responsible for initiating the trouble. Be that as it may, the fact remains that both the parties have been challaned. It is also admitted that on 4‑12‑1988 another case under sections 148 and 307/149, P.P.C. was registered against Safdar Hussain and Arshad Ali respondents for murderous assault on Mst. Hanifan Bibi. In the circumstances, this petition is accepted and the pre‑arrest bail allowed to the respondents by the learned Additional Sessions Judge is cancelled. MA.K./A‑685/L Bail cancelled.