P L D 2000 Karachi 74 (PLP)

5. Before proceedings further, I would like to refer the last two paragraphs of the impugned order through which private respondents/accused were granted bail as it reflects the reasons which prevailed upon the learned Sessions Judge, Karachi (South), while granting pre-arrest bail to all the three accused: " ...Admittedly, the offence had taken place in the early hours of the morning at 9-30 a.m. when number of passers-by and the people of locality and shops would be present yet the police was not able to record statement of the people from the locality but only the brother and son of the complainant were examined. It is also an admitted position that the parties are related inter se but are at dagger drawn and have number of counter-cases pending between them. Even a judicial notice of the fact can be taken that both parties are facing trial in cases pending before this Court. Their two other matters are pending disposal before learned, VIth Additional Sessions Judge, Karachi South, as such their false implication also cannot be ruled out. As regards injured/complainant, the learned counsel for the applicant/accused has contended that the injured remained in Civil Hospital for 2/3 days and, whereafter, he was shifted to Liaqat National Hospital where he has been purposely admitted so as to show that the injuries allegedly received by him are grievous in nature. He has contended that the sole purpose of the complainant/injured is to falsely rope the present applicants into this case, otherwise, the applicants are quite innocent. I have considered this aspect as well and I am of the view that in the peculiar circumstances when admittedly the parties are on inimical terms with each other, false implication cannot be ruled out or at least roping other persons in it. The learned District Attorney while making his submissions frankly admitted that apart from the 161, Cr.P.C. statements of P.Ws. Aurangzeb and Habibullah no other independent witness was examined by' the Investigating Officer. In Katbar and another v. State 1998 PCr.LJ 1438 referred to by Mr. Hashmi, the complainant had named the person who had caused him the injury and on which part, and had also alleged that the same person had repeated the fires from T. T. Pistol but was saved by the other people who had gathered there on his cries. The facts of the present case are different and distinguishable. The complainant and the witness have not said as to which of the applicant had caused the injury to the complainant. Thus, it is yet to be established as to which of the three applicants has actually caused the injury to the complainant hence this is, also a fact which needs further inquiry. The upshot of the above discussion is that there is scope) of further enquiry as contemplated under section 497(2), Cr.P.C. and the applicant/accused have, thus, made out a case for confirmation of their interim pre-arrest bail, which is -hereby confirmed on same terms and conditions . . . . . . . . .

6. Mr. Shafat Ali Khan, learned. counsel appearing for the State, adopted the arguments of Mr. I.A. Hashmi, Advocate, for the Complainant/Injured and contended that since the question of mala fide and false involvement was not considered in its true perspective by the learned Sessions Judge, the pre-arrest bail granted to the three accused are liable to be cancelled/recalled. Mr. Gul Zaman has argued that the allegations of false implication and mala fide on the part of the prosecution were clearly and specifically alleged in the bail application as well as in the supporting affidavits of all the three accused persons tiled in support of application for pre-arrest bail. He has referred to paras. 1, 3 to 6 of the bail application filed before the Court of Session. It was further contended that the complainant himself has admitted in the opening para. of the F.I.R that there exists old enmity between the complainant and accused party which facts is sufficient to prove mala fide on the part of the complainant, According to learned counsel, this gives reason to believe that the accused persons were falsely implicated in the case due to previous enmity.. However, learned counsel has ignored the fact that the ground of old or previous enmity is always a double edged sword. It sometimes gives rise to the suspicion that ah accused person may have been involved for such enmity but at the same time it also gives rise to the cause for accused party to attack the complainant. This, being a question of facts, cannot be considered at this stage. Following are the relevant paras. from the bail application filed before the Court of Sessions and which were supported by the affidavits of all the three accused:-- .....

1. That applicants have been involved due to mala fide on the part of injured/complainant Bahadur Khan due to previous enmity and police was also motivated to register the above case against the applicants being all the three male members of their family. 2. ..................

3. That there is long-standing enmity between the applicants and complainant party since long inasmuch as that on 24-10-1995 an incident took place in which Matiullah, real brother of applicants had sustained injuries arid such report was lodged from the applicants side against complainant party. .

4. That thereafter on the same day on 24-10-1995 when applicants had brought Matiullah in injured condition to Civil Hospital where complainant party attacked upon them in which Saifullah sustained injuries, real brother of the applicants and Habibullah Khan another real brother of applicant was shot dead which incident took place inside Civil Hospital, Karachi a report was lodged against the complainant at P.S. Eidgah. Later on complainant party also lodged case against applicants and both the cases are pending before the Learned VIth Additional Sessions Judge, Karachi (South).

5. That later on in 1996 Mazhar Iqbal, Security Guard of Bahadur Khan lodged false F.I.R at Police Station Kalakot against the applicants and others for an offence under section 324, Qisas and Diyat Ordinance which case is pending before this Hob'ble Court. A counter-case was filed by the applicant against Aurang Zeb Khan and others which is also pending before this Hon'ble Court.

6. That complainant party is dealing with advancing loan to different persons, several times quarrel took place between the complainant party and other debtors, thus, complainant patty has many enemies .......

7. It was also argued on behalf of the accused that the ground for cancellation of bail and for grant of bail are two different things. It was further submitted that no purpose would be served if the accused are remanded to the police custody. Mr. Gul Zaman has drawn my attention by showing me an entry No. 13 of the Station diary of the concerned police station which is of the same date and time when the F.I.R was lodged which shows that the police station had received call from M.L.O, namely, Hanif Shaikh, of Civil Hospital, Karachi that one injured (complainant) aged 48 years had been admitted in the Hospital who had complained that he had received injuries from firing by unknown person. Mr. Gul Zaman Khan has shown me a photocopy of such entry from the station diary of Police Station Kalakot, when enquired from the State Counsel he has admitted this fact after referring to the police papers. Mr. Gul Zaman Khan has referred to the several reported cases but I would like to consider only following cases as they are relevant and will assist in deciding the controversy involved in this cancellation of bail (i) Muhammad Fazil v. Mirza Noor Hussain and another NLR 1984 Cr.LJ 141; (ii) Mian Sherzada v. Dost Muhammad Kiryana Store, and others NLR 1989 UC 253; (iii) Mian Fazal Ahmad v. Rohail Asghar 1986 PCr.LJ 1434; (iv) Meeran Bux v. The State and another PLD 1989 SC 347; (v) Kareesh and others v. Sispal and another 1996 PCr.LJ 937; and (vi) Shamsur Rehman v. Muhammad Rafiq and another PLD 1997 Kar. 194.

8. Reverting to the cases cited by Mr. Iqtidar Ali Hashmi, it was held by the Hon'ble Supreme Court in Murad Khan's case PLD 1983 SC 82 that the condition for grant of pre-arrest bail is that the arrest of the applicant must be shown for humiliation and unjustified harassment or that it is for some ulterior motives. It was further clarified 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 to be seen that the Hon'ble Supreme Court of Pakistan has used the expression "one of the main consideration" and not "the only consideration" to Murad's case. In the case of Sarwar Sultan PLD 1994 SC 133 pre-arrest bail granted by High Court was cancelled as it was found by the Supreme Court as not justified on legal grounds and was not in accordance with the guide lines reflected in the case law laid down by the Supreme Court. The case of Ali Muhammad 1981 SCMR 1139 was considered by the Hon'ble Supreme Court in the cases of Murad Khan and Sarwar Sultan. The case of Muhammad Siddiq PLD 1985 SC 182 deals with the question of "further inquiry" and the question of abscondence of an accused, thus. it is not relevant for the present discussion. Similarly, in the case of Mst. Bashiran Bibi PLD 1990 SC 83 the expression "further inquiry" was considered. In Muhammad Nawaz Khan 1997 PCr.LJ 390, it was held by a learned Single Judge of Shariat Court, Azad Jammu and Kashmir that the jurisdiction of granting anticipatory bail which is the process of diverting normal course of law has to be exercised with caution. In the case of Muhammad Pervez 1985 PCr.LJ 3007, a learned single Judge of Peshawar High Court drew up a line of distinction between pre-arrest bail and bail after arrest. It would be relevant to quote a para. from the case of Sarwar Sultan (supra) which deals with the question as to how the case law is to be interpreted in criminal matters. It reads as follows: ' ... ...It is, thus, clear that principles of law laid down are same, which are to be applied but since facts of any two criminal cases are not the same and each case is to be decided or for that matter, bail matter in that case is to be heard and decided keeping in view peculiar facts of that case and for that reason the conclusions may vary. The most important criterion is that it is the mind of the Court, which is to be satisfied that the case under its consideration is a fit case or not for grant of bail in line with guidelines covering legal requirements."

9. It is the duty of the Investigating Agency to see that where there is no sufficient material to connect an accused person with the alleged offence, they are not required to make attempts for his arrest. If an Investigating Agency/Police Authorities despite weakness in the prosecution case make attempt to apprehend an accused person, this may be a situation where an applicant may plead that his arrest is being unjustified and motivated with ulterior motives. It is some time difficult for an accused who is in a situation of grave emergency, to obtain bail before arrest, to collect materials to satisfy the conscience of the Court that out of mala fide his arrest is required by the police. It would not be just and fair to stretch laws of civil pleadings in the bail matters. If upon merits of the case, the Court comes to the conclusion that there is no sufficient material with the Prosecuting/Investigating Agency to connect accused with the alleged offence and from the material placed before such Court, it tentatively appears to be a case with reasonable doubts then in such matters a Court may extend the concession of a pre-arrest bail to an accused on the allegations of ulterior motives, mala fides, humiliation and harassment. To reach such opinion, the Court may look into the conduct of the Prosecuting/Investigating Agency to ascertain their good faith and bona fides which can be gathered from the tentative assessment of the material collected by the Prosecuting Agency.

10. In the case of Meeran Bux (supra) a Bench of Supreme Court comprising five Judges granted pre-arrest bail to the appellant by setting aside the order of this Court and by restoring the order of the Sessions Judge granting the pre-arrest bail to an accused facing charges under section 307, P.P.C. I would like to observe that in the case of Murad Khan (supra) the decision was given by four Judges of the Supreme Court. In the case of Meeran Bux (supra), pre-arrest bail was granted by the Sessions Judge which was cancelled by this 'Court against which matter went up to the Supreme Court where reference was made to the case of Jamaluddin v. The State 1985 SCMR 1949 whereafter bail before arrest was granted with the following observations:-- "Since the High Court has not considered the case on merits it would seem proper to remand the case to the High Court to consider it on merits. However, Mr. Pirzada stated at the bar that the other accused have already been granted bail. in this case. Since the appellant remained on bail for more than one year before the bail was cancelled by the High Court without abusing the concession of bail in any manner and the reason given by the learned Sessions Judge for granting pre-arrest bail that the injury was on non-vital part of the body of the deceased i.e. thigh and was simple, was not without foundation, we would, therefore, in. the circumstances, set aside the impugned order of the High Court and restore the order of the Sessions Judge granting the pre -arrest bail."

11. As held in the case of Jamaluddin (ibid) grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard. In that case, pre-arrest bail was granted by Sessions, Judge after reaching the conclusion that the accused had been involved, for ulterior motives of harassing due to enmity existing between the parties. However, this Court cancelled the bail granted to the said accused against which a petition was filed before the Hon'ble Supreme Court which was converted into appeal and the accused was granted bail. Following are the relevant observations of the Hon'ble Supreme Court in the case of Jamaluddin (ibid):-- "After hearing the learned counsel, we find that the learned Sessions Judge in his order observed that the State had no objection for the grant of bail to the petitioner and the four other applicants for pre-arrest bail. Further reasons that impressed the learned Sessions Judge were that the deceased had not implicated the petitioner in the commission of the offence, that admittedly there existed enmity between the parties, that no empty was found at the scene of occurrence, and that there were many criminal cases between the parties. We find that unfortunately the learned Judge in the High Court did not take into consideration these weighty grounds upon which the order of the learned Sessions Judge was founded. It has been laid down by this Court that the grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard. In Murad Khan's case to which reference was made by the learned Judge, this Court reiterated the principle that arrest for ulterior motives such as humiliation and unjustified harassment was a valid consideration for grant of pre-arrest bail. Similar rule was laid down in Zia-ur-Hassan's case. In our opinion, therefore, the order of the learned Sessions Judge, did not in any respect, disregard the well recognized principle for grant of pre-arrest bail to the petitioner. Without upsetting the finding reached by the learned Sessions Judge that the petitioner had been involved for ulterior motives of harassing due to enmity existing between the parties the learned Judge in the High Court was not justified to invoke his suo motu powers for the purpose of cancelling the order of bail."

12. Keeping in view the facts of the prosecution case and the plea taken in defence, it could be safely held that the present case was a fit case for grant of I pre-arrest bail. In the back drop of previous criminal cases and old hostilities the allegation of false involvement of the present accused has some force. After going through the police papers and other record produced by the parties and after considering respective arguments of all the Advocates, I am of the considered view that it will not be just and fair to recall the order of granting pre-arrest bail.

13. As a result of above discussion, this petition under section 497(5), Cr.P.C. is rejected with the observation that it will be open to the complainant party to repeat such application before the trial Court if some more material is brought on record, warranting cancellation of bail. Needles to add that all the observations made hereinabove are tentative in nature and in no manner, will prejudice the mind of the learned Trial Judge who is expected to expeditiously proceed with the trial and to conclude the same preferably within one year. N.H.Q./B-46/K Petition dismissed.