2000 PLP 1405 (SCMR)

RANA BHAGWAN DAS, J:

Petitioner who is co-accused along with his brother Ibrahim in a case registered at Police Station Badin for offences under sections 302, 201 and 114/34, P.P.C. seeks leave to appeal against an order of the High Court of Sindh, Hyderabad Circuit, dated 23-12-1999 declining pre-arrest bail to him in the aforesaid case.

2. Case against the petitioner appears to be that co-accused Ibrahim at his instigation called deceased Abdul Rahim to his house and committed his murder by inflicting hatchet blows, on 22-7-1999 at about 10-30 p.m. on account of a dispute over the title and possession of a house. Petitioner along with his brother applied for bail before arrest before the trial Court i.e. Additional Sessions Judge, Badin which was declined by the trial Court by a detailed and well-reasoned order dated 2-12-1999. Petitioner approached the High Court for an order for anticipatory bail along with his brother which was heard by a learned Judge who declined to exercise his discretion in favour of the petitioner and that of the co-accused. It was stated at the Bar that after the rejection of bail plea, co-accused Ibrahim has been taken into custody while the petitioner has not surrendered before the trial Court. 2-A. Learned counsel for the petitioner vehemently contended that the involvement of the petitioner in the murder charge was founded on false allegations inasmuch as he had been made prey to hostilities between the parties as well as annoyance of the local police as his brother Muhammad Ibrahim had filed a Constitution 'petition against Ilamuddin Khoso, A.S.-I. Police Post Lanwary Sharif, Police Station Badin and 12 private persons including the complainant. complaining of undue harassment only a few days before the registration of the F.I.R

3. The question of alleged false involvement of the petitioner has been dealt with adequately by the High Court in the impugned order with the observations that the parties being closely related to each other there was little scope for grinding an axe against the petitioner. As to the institution of a Constitution petition against Ilamuddin Khoso, A.S.-I., Police Post Lanswary Sharif, Police Station Badin and 12 other private persons including the complainant, suffice it to say that only on order of notice to respondents was passed by the High Court on 18-11-1999 whereas F.I.R. against the petitioner and his brother was lodged on 16-11-1999.

4. It was next contended that only part attributed to the petitioner was that of instigation in the commission of the crime and that no active hole was assigned to him but a glance at the F.I.R. tends to indicate that apparently a direct and strong motive was alleged against the petitioner. It would not be fair and proper for this Court to make- any further observations at this stage of the case and we advisedly refrain from going deeper into the merits of the contentions.

5. Laying much emphasis on the question of criminal involvement of the petitioner, learned counsel submitted that only evidence collected against the petitioner was extra judicial confession by co-accused Ibrahim before the complainant party criminally implicating the petitioner with the commission of the occurrence. Be that as it may, trial Court as well as the learned High Court in the exercise of their discretion have thought it fit not to extend extraordinary concession of bail to the petitioners for valid reasons. In the. circumstances, it cannot be held that the lack of exercise of discretion in favour of the petitioner is contrary to the well-settled principles for the grant of extraordinary relief of anticipatory bail.

6. Learned counsel referred to Jamaluddin v. State (1985 SCMR 1949) laying down that the- grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rule can be laid down in this regard and Raza Muhammad Sial v. State (1988 SCMR 1223 ) laying down the principle that no burden is cast on accused at bail stage during investigation in proceedings for bail before arrest, to prove his' innocence. This was a case registered under sections 409, 420/34, P.P.C. read with section 5(2) of Act II of 1947 against a Ward Rationing Officer, who was involved in a scheduled offence by Anti-Corruption Establishment. Reliance was also placed on Meeran Bux v. State (PLD 1989 SC 347) wherein the rule laid down in Murad Khan v. Fazal Subhan (PLD 1983 SC 82) and Jamaluddin's case (supra) was reiterated. It was observed in this case that the High Court had failed to consider the plea of the petitioner that his arrest was for ulterior motive so as to humiliate him as the complainant party had won-over the police and the case was falsely fabricated; and lastly State v. Mukhtar Ahmad Awan (1991 SCMR-322) in which this Court observed that there is no absolute rule that a fugitive from law should under no circumstances be enlarged on bail, although, abscondence does constitute a relevant factor when examining question of bail.

7. There is no cavil with the principles laid down in the reported cases but as has been held time and again, grant or refusal of bail essentially ' depends upon the facts of each case and no inflexible rule can be laid down for the exercise of discretion. It may further be observed that in Mukhtar Ahmad's case (supra) State had approached this Court for cancellation of bail granted to Malik Mukhtar Ahmad Awan by the High Court which is not the situation in the case in hand. It may not be out of context to point out that in law considerations for grant of bail and cancellation of bail are altogether different. Learned High Court has taken into consideration all pleas raised by the petitioner who has been at large for the last more than five months and despite the rejection of his prayer for bail throughout for the last four months he has not been touched by the local police. This circumstance by itself is reflective of the fact that local police does not appear to be unfavourably disposed towards him. In all fairness, after the rejection of bail by the High Court, petitioner ought to have surrendered before the trial Court but instead he has been watching the proceedings of the Court and remaining away from

8. For the aforesaid facts and reasons we find no merit in this petition which is hereby dismissed and leave to appeal is declined. Petition dismissed,