P L D 1989 Supreme Court 347 (PLP)

Murad Khan v. Fazal Subhan PLD' 1983 SC 82 and Jamuluddin V. State 1985 SCMR 1949 ref. Abdul Mujeeb Pirzada, Advocate Supreme Court and Rashid Akhtar Qureshi, Advocate‑on‑ Record for Appellant. Abdul Ghafoor Manghi, Addl. A.‑G. and Muzaffar Hasan, Advocate‑on‑ Record for Respondents. Date of hearing: 22nd January, 1989. NAIMUDDIN, J.‑‑This appeal by lea e arises ~in the following circumstances: ‑ Faqir Muhammad s/o Shah Muhammad lodged F.1 R. stating therein that on 5‑6‑1985 at about 9‑30 p.m. he and lis MASAT Badshah Dino alias Basho son of Sultan Janwari, after seeing the T.V. at the hotel of Muhammad Siddique Janwari, left for their house and Jam Khan Janwari was also coming behind them. All of a sudden four persons namely Miran Bux, Shahrrir, Dil Murad, all sons of Saifal Janwari and Bakht Ali son of Amir Bux, resident of village Sadoro Janwari committed the murder of Badshah Dino and made murderous assault on Jam Khan on Sanhro Minor bank near the land of Haji Sadro. Miran Bux the appellant made direct gun fire upon Badshah Dino causing injury on the left leg/thigh upon which he fell down. Then accused Dil Murad made three fires with revolver upon the face and head of Badshah Dino. Bakht Ali caused lathi injuries to Badshah Dino. Jam Khan tried to prevent the accused whereupon Shah Mir accused caused Lathi blow on his left arm. The said accused are now facing trial under sections 302, 307/34, P.P.C. for having caused the murder of Badshah Dino and making murderous assault on Jam Khan. The three accused were arrested soon after the investigation began. The appellant was not arrested. He, however, made an application for pre‑arrest bail on 8‑12‑1986 to the Sessions Judge, Khairpur who granted him bail by order dated 20‑8‑1986 and the appellant was accordingly released. The complainant Faqir Muhammad Janwari made an application to the High Court of Sind at Sukkur and a learned Judge of the High Court, in exercise of suo motu revisional jurisdiction, set aside the order of the Sessions Judge, relying on a case of this Court namely, Murad Khan v. Fazal Subhan P L D 1983 SC 82 and cancelled the pre‑arrest bail granted to the appellant for the reason that the prerequisite for grant of pre‑arrest bail i.e. the arrest was due‑to ulterior motive, was not satisfactorily proved and, therefore, the appellant's request could not be considered, and thus cancelled the bail. Leave was granted to consider the submission of the learned counsel for the appellant: "that the learned Judge in the High court 'has failed to appreciate that the petitioner had indeed stated in the application for pre-arrest bail itself that his arrest was for ulrerior motive so as to humiliate him as the complainant party had won over the police and the case was falsely fabricated against him.

3. We have heard Mr. Abdul Mujeeb Pirzada Advocate and Mr. Abdul Ghafoor Manghi, Additional Advocate-General, Sind, Learned counsel for the appellant submitted that the case of the appellant fell within rule laid down in Murad Khan s case (supra) for in the bail application the appellant has stated that he is a landlord and businessman and during the incident he was in Quetta on a business trip and that the police was trying to arrest him just to insult humiliate and harass him. He further pointed out that that complainant has involved all the make members of the family i.e all the three brothers and their cousin in the case.

4. Apart from this we find that the Sessions Judge granted the pre‑arrest bail to the appellant after considering the merits of the, case inasmuch as he inter alia observed that the injury alleged to have been caused by the appellant to the leg of the deceased by gun. shot was according to the post‑mortem note, neither fatal nor was caused on the vital part of the body and was declared to be simple and that it was a case of further inquiry so far as the appellant is concerned. The High Court did not at all, consider the case on merits though this Court in the case of Jamaluddin v. State 1985, SCMR1949 has observed at page 1952 of the report as follows: it has been laid down by this Court that the grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard. In Murad Khan's case to which reference was made by the learned Judge, this Court reiterated the principle that arrest for ulterior motives such ' as humiliation and unjustified harassment was a valid consideration for grant of pre‑arrest bail. Similar rule was laid down in Zia‑ul‑Hasan's case. In our opinion. therefore, the order of the learned Sessions Judge, did not in any respect, disregard the well‑recognized principle for grant of pre‑arrest bail to the petitioner. Without upsetting the finding, reached by the learned Sessions Judge that the petitioner had been involved for ulterior motives of harassing due to enmity existing between the parties, the learned Judge in the High Court was not justified to invoke his suo motu powers for the purpose of canceling the order of bail." Since the High Court has not considered the case on' merits it would seem proper to remand the case to the High Court to consider, it on merits. However, Mr. Pirzada stated at the Bar that the other accused have already been granted bail in this case. Since the appellant remained on bail for more than one year before the bail was cancelled by the High Court without abusing the concession of bail in any manner and the reason given by the learned Session Judge for granting pre‑arrest bail that the injury was on non‑vital part of the body of 'the deceased i.e. thigh and was simple, was not without foundation, we would, therefore, in the circumstances, set aside the impugned order of the High Court and restore the order of the Sessions Judge granting the pre‑arrest bail. M.B.A./M‑777/S Order Accordingly.