1989 P Cr (PLP)

In support of the present bail application, it had been argued by Mr. Shaikh Ayaz, learned counsel for applicant, that there is admittedly previous enmity between the parties and the applicant has been involved in a false case. According to Mr. Shaikh Ayaz, either the injuries have been self‑inflicted or it is an unseen crime and the complainant has falsely foisted this case upon the applicant on account of previous enmity. It was further argued that, on merits also a case for bail before arrest is made out. The bail application has been opposed by Mr. Zawar Hussain Jaffery, learned A. A. G. for the State mainly for the reasons already given in the order, dated 22‑9‑1987 of the learned Sessions Judge, Shikarpur whereby the bail application moved by the applicant has been rejected. On merits, according to A. A. G. no case is made out for grant of bail before arrest. In this connection three reported judgments had been cited by Mr. Shaikh Ayaz and these are:‑ (1) Muhammad Anwar Samma v. The State 1976 S C M R

168. This decision, in my view, does not support the contention of the learned counsel that in the facts of this matter a case for bail before arrest is made out. In this decision of the Supreme Court it had been observed that whether the accused persons had the intention or knowledge necessary to constitute an offence under section 307, P.P.C. will of course depend upon the evidence that may be adduced in the case but for the purpose of that bail application before the Supreme Court, it was not considered advisable to go into the allegations in any details but it was sufficient to say that prima facie on the basis of the material available on the record at that time no clear case under section 307, P.P.C. had been made out. (2) Muhammad Aslam v. State 1989 P Cr. L J

603. In this decision of a learned Single Judge of the Lahore High Court, bail before arrest had been granted to the applicant on the ground that, m the facts of that case, whether or not the petitioners were guilty of attempted murder was not free from doubt at the bail stage and as such the doubt had to be resolved in favour of the petitioners. Bail was granted to the petitioners. This decision also lays down the principles that it depends on the facts of each case as to whether the case for bail is made out or not. (3) Rashid Ahmad v. State 1983 P Cr. L J 1461. In this decision on a bail application of a learned Single Judge of Lahore High Court, the injury attributed to the petitioner was not on the vital part of the injured and the petitioner had remained in jail for over six months and although challan had been submitted in Court but no progress had been made and the other co‑accused had already been granted bail. In these circumstances, the application for bail after arrest was granted by the learned Single Judge. It may he observed that at present this Court is dealing with an application for bail before arrest and not an application for bail after arrest. As rightly observed by the learned Sessions Judge, this is a daytime incident and the parties are known to each other and two shots were fired by the applicant which resulted in three injuries including one grievous injury. In this context the submission of learned A. A. G. is also correct that even, if for the sake of arguments, it may be observed that prima facie a case would fall under section 326, P.P.C. The only other point that requires consideration in this bail application for bail before arrest is the question of enmity. No doubt enmity has been shown to exist between the parties but there are two witnesses in the instant case, namely the complainant and his cousin Ali Muhammad. While considering the application for bail before arrest on the ground of enmity, in the facts and circumstances of this case, on the basis of the enmity between the parties, the evidence of two witnesses, namely, complainant and Ali Muhammad cannot be brushed aside to say that prima facie a false case has been foisted by the complainant for causing humiliation and harassment to the applicant. In the circumstances, in my view, no case is made out for bail before arrest and as such Criminal Bail Application No. 1089 of 1987 is dismissed. The interim order granting pre‑arrest bail passed on 6‑10‑1987, as a consequence, is recalled. The observations made in this order are for the purpose of disposing of the present application for bail before arrest. 1n case the applicant is arrested, it would be open to him to move a fresh application before the trial Court which will of course be decided by the trial Court on its own merits. SA./A‑462/K Anticipatory bail refused.