1990 P Cr (PLP)

This application has been presented on behalf of Zahoor son of Mohammad Afzal who is involved in a case under section 302/34, P.P.C. vide F.I.R. No.228/81 lodged at Police Station Jaujarabad, on 29‑8‑1981 at 0015 hours. The prosecution case shortly stated is that on 29‑8‑1981 at 2100 hours the applicant alongwith one unnamed companion had caused injuries to Nasir by Chhuri, who later died as per declaration given by the medical officer of Abbasi Shaheed Hospital. The FIR was lodged by one Ghulam Rasool son of Mohammad Bux wherein he stated that the applicant with one of his companions whom he knows by face, caused Chhuri blows to Nasir, the deceased above named. The police investigated the case and submitted a challan on 22‑2‑1982 against the applicant and one Kazim Irani. Both the accused persons were said to be absconders, as per entry in the challan. The learned counsel for the applicant haven me details of the proceedings conducted by the police and the orders passed by the learned trial Court on various dates for issuance of proclamation as well as the issuance of actual proclamation. He has also given me the details of the statement made by the A.S.I. of the police on the basis whereof the proclamation was issued. He emphasised that actually the proclamation was ordered to be issued on 30‑4‑1984, whereas it was actually issued on 24‑8‑1986. A notice of proclamation was pasted at Rashid Minhas Road, Gulshan‑e‑Iqbal and another at Karimabad. Federal B' Area, Karachi. Both the aforesaid places where notices were pasted were about 5/3 miles away respectively, from this place of the residence of the applicant. All these factors, the learned counsel emphasised, are clear indicative of the fact that the police had mala fide proceeded against the applicant. He emphasised that as a matter of fact the contents of the F.I.R. by itself are false and the case is falsely set up against the applicant, who has never committed any offence during his life and is a law abiding citizen as has been certified by four persons of the locality and two of them. the counsel so urged, are government officials. The counsel also dealt with some other aspects of the matter, which according to him, give a clear indication that it was a falsely set up case against the applicant. In support of his contentions, he placed reliance on (1) P L D 1982 SC 81 and (2) 1987 P Cr. L J

356. Mr. MA. Qarni, learned counsel for the State, on the other hand opposed the bail application by contending that there are different considerations for grant of pre‑arrest bail and after arrest bail on merits. He emphasised that the name of the applicant appears in the FIR and the motive is also disclosed therein. It may be here added that the learned counsel for the applicant had also described the motive given in the F.I.R. in the first instance as no motive at all inasmuch as no details of the quarrel that had taken place between the applicant and the deceased, are given therein. I have given due consideration to the submissions made by the learned counsel for the parties. This application has been directly moved in this Court for bail before arrest. The learned counsel for the applicant stated that in the first instance the District and Sessions Judge in the instant case is itself a trial Court and secondly, that the jurisdiction of this Court and the Sessions Court are concurrent. The law regarding grant of pre‑arrest bail has been enunciated by the Supreme Court and it has been repeatedly followed till today is that the condition of arrest being for ulterior motive, for example that of humiliation and unjustified A harassment is a necessary condition for pre‑arrest bail. In the case Murad Khan v. Fazal‑e‑Subhan and another P L D 1983 SC 82 their Lordships of the Supreme Court have reiterated the principle of grant of bail in the following words. "It has not been denied that there are other cases as well confirming the rule that one of the main considerations for grant of bail is whether the prosecution is motivated by malice, so as to cause irreparable injury to a citizen's reputation and liberty. It is not necessary to notice all of them in this case but it would be of some practicable advantage to take note of few cases in addition to the ones already mentioned where the condition in question was kept in mind. They are (1) Mohammad Shafiq and another v. The State 1982 S C M R 384(2) Sardar Muhammad and others v The State 1980 S C M R 269 and Sardar Muhammad and others v The State 1977 S C M R 326 In the case of Muhammad Shafiq although ground of mala fides on the part of the complainant in the case was asserted, this Court after examining the allegations and the nature of injuries involved in the case, observed that the High Court was right in saying that law should take its normal course and there was no justification for allowing pre‑arrest bail." The mala fides on the part of the police to involve the applicant with ulterior motive or to harass or insult him is not present in the instant case. The name of the applicant as rightly pointed out by the learned counsel for the State does fined place in the F.I.R. There is no allegation in the application and at least B none was urged before me that the F.I.R. was lodged falsely against the applicant at the instance of police. Even otherwise this is a case wherein the applicant/accused has been declared to be absconder. The mere inaction on the part of the police in submitting the challan or prosecuting the matter would not absolve the applicant. On the contrary, it may go to demolish the case in so far as the prejudice is concerned. I do not want to deal with the various contentions raised by the learned counsel for the applicant with regard to grant of bail upon consideration of the merits of the case inasmuch as if the applicant is advised to present an application for bail before the trial Court, it may be prejudicial to his interest. I have disposed of the application only upon consideration of the legal proposition as enunciated by the Supreme Court, namely whether there was any 1c mala fides on the part of the police to involve the applicant in the case with ulterior motive or to cause injury to his person. In the result, the application fails and is hereby dismissed. N.H.Q./Z‑113/K Application dismissed.