1989 P Cr (PLP)

Mr. Habibullah Shaikh, learned counsel for the respondents Nos.2 and 3, the accused submits that the respondents have been falsely implicated due to enmity. There are several cases pending between the parties in different Courts. As regards the post‑mortem report he does not dispute the other contents but submits that the post‑mortem report shows that the stomach of the deceased was empty and so the incident ought to have taken place in early hours of the day and not at about 8‑30 a.m. as generally the villagers go to work after taking their breakfast. The witnesses shown in the F.I.R. arc near relations of the complainant and no independent witness has been cited therein. Syed Zawar Hussain Jafferi, learned counsel for the State supporting the application submits that the learned Judge while granting the bail before arrest has travelled beyond the scope of settled principles for granting bail before arrest. The learned Judge was not justified in granting the bail on the ground of further inquiry. As regards the deceased being of empty stomach, there is no mention of it in the F.I.R. and so there is no question of conflict in the F.I.R. and the post mortem Report. He has referred to the evidence of three eye‑witnesses who have all implicated respondents Nos.2 and 3 and the other co‑accused. He agrees with the submission of the counsel for the applicant that it is a case of brutal murder. As regards enmity he submits that no details of the cases have been furnished or stated during the course of arguments by the learned counsel for the respondents/accused. I have thoughtfully considered the arguments of the learned counsel for the parties. There are different considerations for the grant of bail before arrest and after arrest. Learned counsel for the applicant has placed his reliance on two cases namely, Zia‑ul‑Hasan v. State P L D 1984 SC 192, Mohib Raziq v. Shah Mohammad 1983 S C M R 1130. In the first case it has been observed that: "The Court has no power to grant bail before arrest unless all the condition 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. It is in this context also that the other condition of irreparable loss is to be viewed." This was a case where a pre‑arrest bail granted by the Sessions Court was cancelled by the Lahore High Court. An appeal to the Supreme Court was also dismissed. In the second case, the Hon'ble Supreme Court observed: "The grant of a pre‑arrest bail to a person can be considered if no prima facie case is made out against him or his involvement is apparently false or for ulterior motive or his arrest is otherwise unjustified or is likely to cause irreparable harm to him. The grant of pre‑arrest bail in a serious case like murder should, therefore, be rare." Reliance may also be placed on a similar decision of the Supreme Court, Muhammad Shahbaz Khan and 2 others v. The State 1978 S C M R 432 where in a case under section 307/379/149 and 148, P.P.C., the accused had allegedly caused many injuries including fire‑arm injuries to the opposite party, the Hon'ble Supreme Court ruled that there was no question for grant of pre‑arrest bail. Mr. Jafferi, learned A.A.‑G. relied on Murad Khan's case P L D 1983 SC 82 wherein having foregone resume of the case‑law since 1949, the Hon'ble Supreme Court observed that the recent trend of authorities would show that notwithstanding varied facts this Court always thought it necessary to look for such circumstances which can furnish the presumption that the police was motivated on political considerations or other ulterior reasons, before granting, pre‑arrest bail. After discussing the case‑law, laid down by the Hon'ble Supreme Court it is clear that the bail before arrest can be granted when the arrest is for ulterior motive such as humiliation and unjustified harassment and it is shown that the prosecution is motivated and in case the bail before arrest is not granted irreparable injury will be caused to the accused persons. The impression, after reading the impugned order I get is that the impugned order is not in conformity with the principles laid down by the Hon'ble Supreme Court. Let me now quote the relevant part of the impugned order. It reads:‑ "I have perused the F.I.R. and police papers. The accused are said to be seedling the paddy crop and they attacked the deceased with hatchets while he passed by them. Accused Abdul Ghafoor is said to be a Zamindar and Nek Mard of the locality. He is also Councillor and Vice Chairman of Union Council Bhrikan. I am inclined to say that he could not be expected to be seedling the paddy crops. Accused Anwar is son of accused Abdul Ghafoor. Moreover while going for seedling it could not be expected to be armed with hatchet. Now‑a‑days it is full swing seedling paddy, and it is natural that many persons must be available in their fields for seedling of the paddy crops. But not a single independent witness has been cited by the prosecution which makes the involvement of the accused doubtful. Moreover the accused are said to have inflicted hatchet blows to deceased jointly with other co‑accused which requires further enquiry. Moreover, number of the injuries do not tally with the contents of the, F.I.R. It is said in the F.I.R. that all the accused caused hatchet injuries but it is not clearly shown as to which number of injuries have been caused by each accused as such the provisions of section 497, Cr.P.C. (2) have been attracted in this case. Under these circumstances of the case, I am of the opinion that the applicant/accused has made out good case for bail. I, therefore, confirm the bail already granted to accused on the same terms and conditions." The order of the learned Judge, as quoted above is silent about the alleged enmity or mala fides or pendency of cases between the parties. It appears that the learned Judge was led away by considerations not warranted in law for considering the matter for bail before arrest. In some respects even some of the considerations cannot be made ground for even bail after arrest, but I do not feel inclined to make any further observation in this respect as it may prejudice the trial of the case. However, regarding observation of the learned Judge that one of the accused is a Councillor and Vice‑Chairman, Union Council I cannot say anything better than cite from verse 135‑of Surah Al‑Nisa of the holy Qur'an, It reads:‑ " ....be rich or poor, for Allah is closer to them both therefore, follow not your inclination, lest ye deviate and if ye swerve or turn aside, verily Allah is All‑Aware of what ye do." I also recollect an incident at Madina during the days of the Holy Prophet which has been stated in Sahih al‑Bukhari that a woman belonging to the respectable Muzniyah tribe was involved in a theft case. People of the tribe who were hesitant in approaching the Holy Prophet entreated Usamah‑bin‑Zaid the emancipated slave of the Holy Prophet to recommend her case to the Prophet (PBUH). When Usamah recommended her case to the Prophet, he said that: "If Fatima, the daughter of Muhammad, (peace and blessing of Allah be upon them) commits the offence of theft; she would surely be subjected to the punishment of amputation of hand. It is further recorded in the Sahih that the Prophet said: "The previous communities perished because they used to punish the poor and weak and let their rich and powerful go scot free." According to the Islamic concept of justice and fair‑play people are not treated differently on the basis of their being high ranking personalities or belonging to the poorer class of the society. Even a king and an ordinary person have equal position in the eyes of the Qazi. Nobody is allowed to influence or pressurize the Courts. And same thing is provided in the Constitution of Islamic Republic of Pakistan (Article 4) that every person is equal before law. For the reasons aforesaid the above application is accepted and the bail' granted to the respondents/accused is cancelled. Since the bail stands cancelled the trial Court may take further steps according to law to cause arrest of the respondents/accused who, though present in the Court during hearing, appear to have slipped away when the order was being dictated. After I dictated the order in Court, an application is submitted by the applicant. Since it contains allegations against the learned Judge who had passed the impugned order granting the bail, I direct the office to send the same to the. Hon'ble Chief Justice, for such action as deemed necessary and proper, retaining a copy thereof in the record. M.Y.H./A‑422/K Bail cancelled.