1985 P Cr (PLP)

10. The principle for grant of anticipatory bail has been laid down by Supreme Court in a case of Murad Khan v. Fazle‑e‑Subhan and others, reported in P L D 1983 S C

82. Their Lordships have fully discussed the case‑law and observed that anticipatory bail can only be granted on the following circumstances:‑ (1) Arrest being for ulterior motives such as humiliation and unjustified harassment. (2) Prosecution motivated by motive so as to cause irreparable injury to reputation and liberty. (3) Motivation of police on political consideration. This view has been endorsed in the cases of Muhammad Safdar and others v. State reported in 1983 S C M R 645 where it has been held that bail before arrest is not a rule in cognizable offence but can be allowed only when petitioner apprehended, arrest due to ulterior motive or some peculiar features justifying exercise of discretion in favour of Petitioner. In a case of Zia‑ul‑Hassan v. State reported in P L D 1984 5 C 192 it has been held that the Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts from time to time are satisfied, the most essential of these all being that the intended arrest would be tainted with mala fides which must be specifically stated.

11. The legal position is very clear that law about the pre‑arrest bail is different than bail after arrest.

12. In this case while granting interim bail the learned Incharge sessions Judge, Hyderabad in his order dated 9‑6‑1984 observed as under:‑ "The name of the applicant of course appears in this F.I.R., but the accusation is that he merely abused injured Ghulam Haider Jan and gave him kick and fist blows. He is not alleged to be armed with any weapon nor he is said to have caused injury to the deceased'. The learned counsel stated that the applicant is a big Zamindar and respected person. According to him he is involved on account of enmity with the other side who are his close relations."

13. The learned Sessions Judge in his order dated 17‑7‑1984 while confirming the bail stated:‑ "A direct complaint has also been filed thereafter by the complainant against all the three accused on 13‑6‑1984 in which the facts of the F.I.R. have been, twisted and obviously on expert legal advice, it is further alleged that when the applicant came out with the complainant, he instigated his son and nephew in filthy language to kill Ajmal Jan and Ghulam Hyder Jan and thereupon Sajjad Ahmad Jan and Wali Muhammad Jan caused injuries to Ajmal Jan anti Ghulam Haider Jan. After both of them fell down on the ground, the applicant gave kick blows on the face of Ajmal Jan and fist blows on the person of Ghulam Hyder Jan. It would therefore, appear that this second version is an improvement and is belated by 8 days. It will, therefore, not be safe to readily rely upon the second version. Hence it is a matter of further enquiry as to whether the second version is true and benefit in this case would go to the applicant. According to the first version, no prior instigation or concern is shown on the part of the applicant who was assigned the role of abusing and giving blows to Ghulam Hyder along after accused Sajjad Jan and Wali Muhammad Jan had already caused injuries to Ajmal and Ghulam Hyder Jan and had fallen them on the ground. Thus, prima facie, the applicant cannot be vicariously held liable for what the two accused had already done, apart from the fact that even such subsequent conduct on the part of the applicant was unnatural. Aftab Ahmad Akhund who appeared for the complainant relied upon P L D 1983 S C 82 and 1981 S C M R 1139 and submitted that mala fide of intended arrest was condition precedent to the grant of bail before arrest. Hence the applicant should first be arrested by the police and then he should apply to the Court for bail afresh. I don't agree with Mr. Aftab. These rulings would not apply to the present case because by now the police has already challaned the applicant alongwith two other co‑accused and investigation stage is over. On the point of determination of vicarious liability etc. a number of rulings have been cited from both the sides, the consensus, however, is that the Courts can take into consideration the question of vicarious liability even at the time of bail. In these circumstances, I am of the view that interim bail before arrest granted by I/C Sessions Judge Mr. Imdad Ali Memon, merits to be confirmed. I, therefore, confirm the interim bail before arrest already granted to the applicant. The application for cancellation of bail accordingly stands dismissed."

14. Respondent Pir Muhammad Saeed before ties Court swore an affidavit in which he stated that he sought bail before arrest as out of mala fide of complainant, who was making false and frivolous allegations against him to the higher authorities by way of telegrams and Press statements and his apprehension came out to be true when on 13th June, 1984 a direct complaint with different version assigning major role to the commission of crime was filed.

15. No counter‑affidavit was filed by the petitioner. The admitted facts in the F.I.R. as well as in direct complaint are that co‑accused Sajjad Ahmad Jan, the son of the respondent and Wali Muhammad Jan, his nephew caused knife (dagger) injuries to deceased Ajmal Jan and injured Ghulam Haider Jan and both the accused are in jail who caused injuries to deceased and injured.

16. In criminal Bail Application No. 686/1983 reported in 1984 P. Cr. L J 2400 the Honourable Chief Justice of this Court observed as under:‑ "The learned Additional Advocate‑General has however, invited my attention to the judgment of the Supreme Court in the case of Murad Khan P L D 1983 S C

82. The Supreme Court has stated that pre‑arrest bail could be granted if it appears that arrest was for ulterior motive to humiliate, and harass the accused, or to cause irreparable injury to reputation or liberty. The very fact that the accused is likely to be arrested in a case of such nature would mean harassment, and by his arrest the accused would not only lose his liberty but even his service. In my view the conditions prescribed in the Supreme Court judgment are amply satisfied in the present case. Interim bail granted to the accused on 18th August, 1983 is confirmed. "

17. In case of Hidayatullah v. Abdul Hameed and others reported in 1984 S C M R 119, the pre‑arrest bail was granted by the Supreme Court on merits and held that case require further enquiry. It is now to be seen whether the learned Sessions Judge was justified in granting A pre‑arrest bail to the respondent Pir Saeed Jan. The allegation in the F.I.R. against the respondent is that he instigated co‑accused and caused kicks and fists blows to injured Ghulam Haider Jan but no such injury except sharp‑edged weapons was found on the person of Ghulam Haider Jan. The role assigned to respondent in direct complaint is different but admittedly he was said to be empty‑handed. The investigation is complete and the case has been sent up for trial.

18. Had he not been granted bail by the court the Police must have arrested him and even at this stage complainant wants to see the respondent in jail. In the circumstances stated above, I am of the view that there was mala fide on the part of complainant and conditions for grant of pre‑arrest bail have been fulfilled. The learned Sessions Judge has properly exercised the discretion in granting anticipatory bail to Pir Saeed Jan and his order calls for no interference.

19. The counsel appearing for the State had not objected to the grant of pre‑arrest bail before the Sessions Judge and in this Court, the learned Assistant Advocate‑General has not supported the cancellation application. In view, of the circumstances and reasons stated above I dismiss the application.

20. The grievance of Mr. Aftab Akhund is that Sessions Judge in his order hay not considered his contentions about the tampering of the evidence. It is a matter of record that petitioner filed affidavits of all the witnesses that respondent is trying to tamper with the evidence. The order of the Sessions Judge on this point is silent. In all fairness the learned Sessions Judge should have considered this aspect of the case. It is open for the complainant to take up this point before the trial Court at any time if so advised. I have tried to refrain from considering the merits of the case in detail. However any observations made in this order should not prejudice the case. The trial Court to decide case on merits and according to law. S. G. D. Order accordingly.