1976 P Cr (PLP)

3. A case under section 307/326/452/148/149, P. P. C. was accordingly registered against the aforesaid accused persons. Muhammad Azam applied for anticipatory bail before the learned Sessions Judge, Gujrat. The petition was heard by the District Magistrate who was then exercising the powers of the Sessions Judge. He admitted the accused to anticipatory bail on the ground that he was Headmaster of Middle School and being a Government Servant was not likely to abscond. Thereafter the other accused also applied for anticipatory bail. They were allowed interim bail before arrest by the learned Sessions Judge on 8‑5‑1975. The Interim bail of all the accused, except Ansar Ali, who bad died by then, was confirmed on the 27th of May 1975.

4. Muhammad Ashraf complainant felt aggrieved by the accused being admitted to bail before arrest and applied for cancellation of their bail by means of Criminal Misc. No. 2411‑B‑1975. I issued notice to Muhammad Afsar and Iftikhar Ali, but later on the petition was dismissed because of non‑appearance of the counsel for the petitioner. The complainant, thereafter, filed the present petition repeating his request for cancella tion of bail of the four accused persons. Notice was issued only to Muhammad Afsar and Iftikhar Ali and the petition qua the other respondents was dismissed in limine.

5. Mr. Asif Jan, Assistant Advocate General, appearing on behalf of the State supported the petition and argued that this was not a fit case where the accused should have been given the concession of anticipatory bail. It was submitted that they had been charged with an offence punishable with life imprisonment, even otherwise no prima facie case had been made out for pre‑arrest bail. Relying on P L D 1966 S C 589 it was submitted that anticipatory bail is not to be allowed as a routine. The learned Law Officer then criticised the reasons given by the learned Sessions Judge for confirming the bail. It was argued that one of the factors which weighed with the learned Sessions Judge while confirming the bail of Muhammad Afsar was that he was sick and infirm person and was admitted to C. M. Hospital. Learned counsel submitted that it was factually incorrect, there was no proof of the ailment of the accused and his admission in the hospital. In case of Iftikhar Ali, it was submitted that the learned Sessions Judge erred in law in accepting the plea of alibi supported by the affidavits of three Advocates, because that was not the proper stage to express any opinion and the finding of the learned Sessions Judge thereby had seriously prejudiced the case of the prosecution. Last of all, it was submitted that the mere fact that the injuries caused by the fire‑arm were simple was of no consequence, because it had been established from the medical evidence that fire‑arm had been used in the attack on Muhammad Ashraf, the accused, therefore, exposed themselves to punishment which could be life imprisonment.

6. Raja Muhammad Muzaffar, appearing on behalf of the respondents, opposed the petition on number of grounds. His, main emphasis was on the fact that the respondents had been on bail since 27th of May 1975, and, therefore, it would not be in the interest of justice to send them to jail at this stage nor would the prosecution be benefited by that. Learned counsel then submitted that there were other factors in favour of the respondents; those were, that the State never moved for cancellation and that the earlier petition by the complainant bad been dismissed by this Court. On merits, learned counsel contended that the discretion exercised by the learned Sessions Judge called for no interference nor did he commit any illegality in admitting the respondents to pre‑arrest bail and the learned Sessions Judge was well within his rights to consider the plea of alibi and as he found that it had some substance, he rightly gave the benefit of the same to the respondents. In support of this. learned counsel relied on Muhammad Hussain v. Muhammad Anwar Ahmad and another (1975SCMR 151), Muhammad Shafi v. Muhammad Anwar (1975SCMR219) and Muhammad Naqi Butt and another v. The State (P L D 1976 Lah. 190). While dealing with the medico‑legal report, it was submitted that in all complainant received nine injuries and it was only injury No. 5 which was found to be grievous whereas the injuries with fire‑arm were simple in nature, this factor was of some significance for the grant of bail, therefore, it was rightly considered by the lower Court. During the arguments, learned counsel produced some other certificate of the doctor to prove that Muhammad Afsar was a sick person but I declined to look into it, because that had not been produced before the Sessions Judge nor was that the basis on which one of the accused was admitted to pre‑arrest bail. The certificate produced on behalf of Muhammad Afsar, as a matter of fact, is a prescription and cannot be taken to be conclusive proof of the illness of Muhammad Afsar. On this, there is a note "Admit in C. M. H." I do not think, therefore, that this document furnishes even a prima facie proof of the type of illness of Muhammad Afsar, which could bring his case within the exception of sick or infirm person.

7. So far as the plea of alibi is concerned, no doubt, it is to be taken into consideration, but how much weight is to be attached to such a plea is a question of fact to be determined in the light of circumstances of each case, keeping in mind, that any opinion at a premature stage is bound to adversely affect the case. It is primarily the function of the trial Court to determine the truth of alibi. Reference in this connection be made to Iqbal‑ur‑Rahman v. The State (P L D 1974 S C 83). In the present case, the finding of the learned Sessions Judge regarding the plea of alibi amounts to its acceptance at a very early stage, such an expression is bound to prejudice the case of either side.

8. The power to grant anticipatory bait is to be exercised very sparingly and in exceptional cases. This had been repeatedly held by this Court. Bail before arrest is not to be treated at par with bail after arrest, because for anticipatory bail, the accused must make out a prima facie case to show that his involvement in a criminal case was with some ulterior motive and the sole purpose of his arrest was to put him to humiliation and harassment.

9. In the instant case, the reasons given by the learned Sessions Judge were not warranted by law. The mere fact that per chance injuries by fire‑arm turned out to be simple would not entitle the accused, as a matter of right, to claim the concession of pre‑arrest bail. I am unable to agree with the learned counsel that as more than one year has now elapsed, since the, accused were released on bail, therefore, the bail should not be cancelled, because the sole point to be considered in this connection is whether the discretion exercised by the lower Court pertaining to pre- arrest bail was in accordance with the well recognised principles of administration of criminal justice and for that matter mere lapse of time would be of no consideration nor would that legalise an order, if otherwise it was not in accordance with law.

10. For the foregoing reasons I would allow this petition, cancel the bail of Muhammad Afsar and Iftikhar Ali and direct that they should be taken into custody forthwith and sent to jail. However, they will be entitled to move for bail after arrest before the learned trial Court after some material evidence has been recorded. The lower Court records be also returned forthwith. Petition allowed