2001 P Cr (PLP)

Heard Mr. Hidayatullah Abbassi, learned counsel for applicant Akhtar Nawaz, Mr. Nisar Ahmed Durrani, Advocate for respondent No.1 and Mr. Ali Azhar Tunoi, learned A.A.G. for the State. By this application the applicant Akhtar Nawaz who is complainant in this case seeks cancellation of bail before arrest granted to the respondent No.

1. The sole point canvassed by Mr. Hidayatullah Abbassi in support of the application is that the condition precedent for granting bail before arrest is mala fide on the part of prosecution and according to him in this case no mala fide has been established and therefore, bail before arrest could not be granted by the learned VIIth Additional Sessions Judge, Hyderabad. Mr. Hidayatullah Abbassi has taken me through the contents of F.I.R. according to which the only role assigned to the accused/respondent Nazeer alias Nazeera is that he slapped complainant Akhtar Nawaz. No other role is assigned to the respondent No.

1. It is on record hat the fatal shot is stated to be fired by Shabbir brother of respondent No.

1. It is also on record that the respondent and his three brothers have been implicated in the instant case meaning thereby that all the male members of the family have been implicated for the commission of offence. I have asked Mr. Hidayatullah Abbassi as to what is connotation of expression mala fide to which he has very rightly stated that in the present circumstances bf the case the mala fide means implicating an innocent person for the purpose of arrest and for humiliation. I have further asked Mr. Hidayatullah Abbassi if there is general practice in this country to implicate the entire family of an accused person and particularly all the male members even if offence is committed by one or two of the family members. Mr. Hidayatullah Abbassi has candidly conceded that such practice is prevailing all over the country. I am of the opinion that the Courts cannot remain oblivious of the objective conditions and the unwanted and undesirable practices prevailing in the society. The question of mala fide is, therefore, to be considered in the background of the objective conditions prevailing in the society and the facts and circumstances of a particular case. In this case there is allegation that some enmity is already there between the parties and it is a matter of evidence whether the allegation is correct or otherwise. However, since all the three brothers of the main culprits have been implicated and no overt act is attributed to the respondent except that he slapped complainant Akhtar, therefore, I am of the opinion that prima facie a case of mala fide is there and the learned Additional Sessions Judge has dilated on this point in detail. In the present circumstances of the case, I am of the opinion that no case is made out for the cancellation of bail more particularly in view of the fact that Mr. Nisar Ahmed Durrani learned counsel has stated that the charge has already been framed against the accused persons by the trial Court and today the case is fixed for recording of evidence. Mr. Nisar Ahmed Durrani has placed reliance on a judgment of Honourable Supreme Court of Pakistan in the case of Miran Bux v. The State and another PLD 1989 SC 347 wherein it has been held that where the complainant has involved all the members of the family of accused i.e. all the three brothers and their cousins and injury is alleged to have been caused by the accused to the leg of deceased by gun shot which was not fatal, it was not proper on the part of High Court to cancel the pre-arrest bail granted to accused. The Honourable Supreme Court set aside the order of Sindh High Court cancelling the pre-arrest bail. The present case is on better footing because in the cited case a gunshot injury was alleged to have been caused by the respondent/accused while in this case no injury is alleged to have been caused by the respondent Nazeer. Respectfully following the dictum laid down by the Honourable Supreme Court of Pakistan, it is held that the learned Additional Sessions Judge rightly granted the bail and the cancellation thereof is not warranted. The application stands dismissed. N.H.Q./A-98/K Petition dismissed.