1986 P Cr (PLP)

(d) that it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr.P.C. would have to be kept in mind; (e) that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr.P.C.". The principle enunciated in the above case has been reiterated in the case of Murad Khan v. Fazle Subhan and another P L D 1983 Supreme Court

82. In Murad Khan case the matter was brought before the Supreme Court in appeal against the order of Peshawar High Court whereby respondent was allowed anticipatory bail in a case of attempt to commit murder. Bail was granted in that case but the High Court of Peshawar only after considering the merits of the case. The grant of bail in that case was disapproved by the Supreme Court and following observations were made while reiterating the principles governing grant of anticipatory bail:‑ "The foregoing resume of the case‑law since 1949 and the recent trend of authority would show that notwithstanding vary facts, this Court always thought it necessary to look for such circumstances which would furnish the assumption that the police was motivated on political consideration or other ulterior reasons, before granting pre‑arrest bail. In this case, with respect, it is pointed out that the learned Judge in the High Court failed to notice the principles discussed above. Learned counsel for the respondent remained unable to satisfy us with regard to the condition of male fide of the intended arrest. It was, therefore, not ant case for grant of anticipatory bail, though after arrest the petitioner would have been at liberty to urge the point on the basis of which the impugned order was passed." I will also refer here some other cases in which pre‑arrest bail was granted or refused keeping in view the above considerations. In the case of Muhammad Shafiq and another v. The State 1982 S C M R 384 the petitioners were facing prosecution under sections 148, 382, 452 and 506, P.P.C. read with section 149, P.P.C. The complaint was lodged by Advocate against the petitioner and allegations were made that because of his pursuing a case against the petitioners his office was ransacked by the petitioners alongwith others and the clerk of the Advocate was injured by them. The F.I.R. was lodged after the result of medico‑legal examination of the injured clerk of the Advocate. The petitioners were refused anticipatory bail after they were granted interim bail by the High Court and against the order of refusal to grant them anticipatory bail the petitioners applied to the Supreme Court. It was contended before the Supreme Court that the case against the petitioners was wholly fabricated and false as the real object behind the complaint was to put pressure upon one of the petitioner's father to restore the tenancy of the bank in respect of a house. Some documents were also produced before the Supreme Court in support of the above contention. The Supreme Court while refusing the petition for leave to appeal observed that was not possible for the High Court at this stage to declare that the complaint against the petitioner was completely false and without foundation and that no such incident had taken place. In the case of Ali Muhammad v. Yamin and another 1981 S C M R 1139 pre‑arrest bail was granted by the High Court of Lahore in a case which was initially registered against the respondents under section 304‑A , P.P.C. but as a result of further investigation by the police the offence was changed to one under section 302, P.P.C. The allegation against the respondents in the came that he was trying to establish sexual relations with deceased boy but the latter resisted and, therefore, the respondent deliberately crushed the deceased under his tractor when the deceased was riding on bicycle on his way to the village. It is also alleged in the F.I.R. that he deliberately chased the boy in the wheat field hitting him with his tractor from behind. It was argued on behalf of the respondent before the Supreme Court that the case once again under investigation and that the medical evidence does not support the allegation that the deceased was crushed under the tractor, The Supreme Court cancelled the bail of the accused granted by the High Court before arrest and it was held that in order to justify grant of such bail the accused must show that he apprehended his arrest on account of ulterior motives which were found missing in that case. In Muhammad Safdar and others v. The State 1983 S C M R 645 bail before arrest was refused to three persons against whom a case was registered under sections 148, 324 and 325, P.P.C. read with section 149, P.P.C. by the High Court of Lahore. The petition for leave to appeal was filed by these persons before the Supreme Court and it was contended that the incident had taken place at 8‑00 a.m. on 13th December, 1975 and one of the petitioners lodged a report in the concerned police station at 8‑10 a.m. on 14th December, 1975, whereas another F.I.R. about the same incident was registered at the same police station at 9‑00 a.m. the same day by complainant side. In both the F.I.Rs. each party accused the other having initiated attack and caused injuries to each other. In this background it was contended before the Supreme Court that the learned Judge of the High Court was in error is concluding that the First Information Report made by the petitioner Muhammad Akhter was prior in time to the counter‑report made by Haji Muhammad Akhtar by the opposite party and that the other petitioner had suffered injuries on account of which right of private defence had accrued to him and his companions and, therefore, they are entitled to pre‑arrest bail. The Supreme Court rejected the contention and observed as follows:‑ "The submissions made by the learned counsel for the petitioners overlook the fact that bail before arrest is not the rule in cognizable offences, and is to be allowed only when it can be shown that the petitioner apprehends arrest due to some ulterior motives on the part of the authorities or other influential persons or there are some peculiar features of the case which could justify the exercise of this discretionary power by the High Court or the Sessions Court. In the present case, no such features appear to be present. An incident has admittedly taken place between the parties, in which the petitioners are accused of having caused injuries to Muhammad Sadiq of the opposite party. In the normal course of criminal law the petitioners can legitimately ask for bail only after their arrest and not before arrest." In Zia‑ul‑Hassan v. The State P L D 1984 S C 192 pre‑arrest bail was granted to the petitioner by the Sessions Court in a case registered against him alleging misappropriation of valuable articles entrusted to him for safe custody by defrauding his superiors including a magistrate. The trial Court granted interim pre‑arrest bail within few days of registration of the case which was later on confirmed. An application for cancellation of pre‑arrest bail was moved before the High Court in which bail was cancelled. Against the order cancelling the bail petition for special leave to appeal before the Supreme Court was moved and it was contended that High Court could not cancel the bail under section 497(5), Cr.P.C. and it was further contended that the possibility of recovery of misappropriated article could not be considered as a valid ground for cancellation of pre‑arrest bail. The Supreme Court refused to interfere with the order of the High Court and observed as follows:‑ "The possible recovery of stolen or misappropriated articles or articles used in the commission of the crime amongst other types of recovery, can be a good ground for cancellation of bail. There is no bar of propriety of law in this behalf. In this behalf it is the duty amongst others, of the Court granting pre‑arrest bail to examine the question whether such an action would not frustrate the investigation vis‑a‑vis various factors including the relevant recovery. If the order granting pre‑arrest bail by the trial Court is silent about it, the presumption would be that it was not conscious about the same. In this case not only that the learned trial Judge was unaware of this aspect of the case but also the order shows lack of awareness of the basic law about the pre‑arrest bail as distinguished from the bail after arrest. 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 them all being that the intended arrest would be tainted with mala fides which must be specifically stated. It is in this context also that the other condition of irreparable loss to be viewed. Learned counsel appearing before us did not mention any fact to suggest that the arrest in this case would be mala fide. The High Court indeed was fully justified to interfere with this illegal order brought before it for scrutiny." I have referred above to some of the cases in which either bail before arrest was refused or was granted but was subsequently cancelled by the Supreme Court. I will now refer to some of the cases in which bail before arrest was granted by the Supreme Court after it was refused by the High Court. In Muhammad Azam and another v. The State 1980 S C M R 269 the petitioners were involved in a case registered against them under section 5(2) of the Prevention of Corruption Act and under section 409, P.P.C. for having constructed a drain in the area of the Town Committee Paharpur against the requisite specifications. It was alleged in the F.I.R. that actual work was got done by the petitioners themselves though on paper, one Ranjhoo was shown as its contractor. The petitioners applied for pre‑arrest bail but the same was refused by the Sessions Judge and finally by the Peshawar High Court on the sole ground that the contractor referred to above had given a statement in which he admitted and disclosed that the work was got done through him on paper and that in fact the petitioners themselves were reaping the benefit of the said contract. The petitioners approached the Supreme Court for grant of pre‑arrest bail and it was granted on consideration of the following factors:‑ (a) that the F.I.R. does not contain the name of any first informant. This is deliberate for the purpose of escaping the ultimate liability for false prosecution. All that the F.I.R. discloses is that its sources were "reliable sources". This is not a proper and regular F.I.R. under section 154, Cr.P.C. (b) that no details of precise offence committed none of the person responsible for the same were given. (c) that report of the A . C . E. referred to in the F .I . R . and read out in Court did not particularise as to what were the specifications and how the construction of the drain was in violation of those specifications. (d) that Ranjhoo appears to be disgruntled contractor who claimed that he had to receive dues from the department which were not paid to him. (e) that the work was completed long ago, and the drains stood demolished due to flood/rains which means that no material evidence against the petitioners in particular and on the subject in hand in general was available; and lastly; (f) that the case appeared to be of personal and departmental intrigues and jealousies and has been put up in order to harass and ridicule the petitioners with an ulterior motive to disgrace them and get them hand cuffed and not in the interest of justice. In the well‑known case of Ch. Zahur Illahi v. The State 1981 S C M R 935 the Lahore High Court refused to confirm anticipatory bail granted to the petitioner in a case which was registered against him under section 302/34/120‑B, P.P.C. The allegation against the petitioner was that he entered into a criminal conspiracy with certain other persons in consequence of which Chaudhry Muhammad Anwar a former Provincial Minister at Gujrat was murdered. The F.I.R. was lodged on the same day by an eye‑witnesses and a cousin of the deceased who alongwith certain others had accompanied him in the jeep to the District Court on that fateful day. It was contended before the Supreme Court in the petition filed against the order of the Lahore High Court refusing confirmation of pre‑arrest bail that the case against the appellant was a mala fide one to harass him because he belonged to the opposition group in the National Assembly. It was also stated before the Supreme Court that over the period of three years so in the past a large number of cases had been registered against the petitioner in none of which proceedings have commenced so far and that some of such cases were later cancelled. It was also argued that the confessional statement of the accused in the case recorded by the police were not legal evidence in the case and cannot form a basis of reasonable belief within the meaning of subsection (1) of section 497, Cr.P.C. The Supreme Court granted pre‑arrest bail to the petitioner noticing that the appellant was not named in the F.I.R. which fact was of a singular importance in that case when the F.I.R. was lodged by a confident and an eye‑witness of the deceased. It was also noticed by the Supreme Court while granting pre‑arrest bail to the deceased that the fact that the confessional statement of the accused was not recorded until 12 days after the incident and that of the eye‑witnesses .11 days was another noteworthy factor. It was also found that the allegation of the petitioner that series of criminal cases were registered against him at various places and no proceedings were taken so far was also not rebutted by the State. Accordingly the appellant was admitted to pre‑arrest bail. In Sardar Muhammad and 4 others v. The State 1977 S C M R 326 the Lahore High Court refused bail before arrest in a case registered against the petitioner under sections 148, 307 read with section 149, P.P.C. on the ground that the F.I.R. in the case was lodged without any inordinate delay in which the names of the appellants were disclosed and there was evidence of the fire‑arms having been effectively used. The F.I.R. in the case itself disclosed that the P.N.A. had given a call for Hartal on the fateful day but some of the shopkeepers of Burewala Bazar belonging to the Pakistan Peoples' Party had not responded to the call. Sometime before the incident a P.N.A. procession passed by Burewala Chowk and the processionists threatened Zakir Hussain Shah, a cigarette dealer, to close his shop and on his refusal to do so, he was injured by stones, pelted by the crowd. On hearing about the incident Muhammad Ashraf the complainant and others belonging to the People's Pary arrived there and took the injured to the hospital. The complainant and Farzand Ali crossed the bridge and as they neared the western wall of Purani Sabzi Mandi they saw the appellants armed with rifles, guns and a pistol. On seeing them the first appellant abused them and then gave a Lalkara that they should not be spared that day upon which all the appellants fired at them as a result of which Farzand Ali received a bullet injury but the complainant managed to escape from there. It was contended before the Supreme Court that neither the complainant nor the injured were men of any political importance and, therefore, it was highly improbable that the appellants would have by design assembled to kill them with fire‑arms. It was further contended that even though it was alleged that all the appellants had fired at them but it is surprising that only the injured was hit and that too by a single bullet while the complainant managed to escape. It was lastly urged before the Supreme Court that the petitioners were implicated out of malice because they were office‑bearers of the P.N.A The Supreme Court on consideration of the above circumstances admitted the petitioners to pre‑arrest bail. From the resume of the above discussion it is quite clear that a circumstances in a case which may be a good ground for enlarging a person on bail after his arrest has never been considered alone as sufficient by the Court to grant pre‑arrest bail to him. The Courts while granting pre‑arrest bail to a person have always looked for some peculiar and extraordinary circumstances in a case which would show that the apprehended arrest was not for reasons stated in F.I.R. case but for other ulterior motives and the real object of such arrest is not to bring home the real culprit but to cause undue harassment and humiliation to such person at the hands of police. It is thus clear that the dominant factor in all such cases are the existence of circumstances which furnished the assumption that the police was motivated on political consideration or it was a case of official intrigue or other ulterior reasons, which justified grant of bail before arrest. In addition to above factors the applicant applying for bail before arrest must always show that his case is otherwise fit on merits for grant of bail keeping in view the consideration set out in section 497, Cr.P.C. and there is a real and imminent apprehension of his arrest unless the Court intervened. In the light of above discussion I will now consider the two bail applications in which the petitioner have applied for bail before arrest. In Cr.B.A. No. 113/85 Kajlo and three others have applied for pre‑arrest bail. According to the allegation in the F.I.R. which was lodged the police constable Khadim Hussain against the petitioner it is alleged thaw one Shahbazi son of Mevo had filed a direct complaint against the complainant, P.C. Rehmatullah and P.C. Muhammad Yakoob in the Court of Assistant Sessions Judge, Kandhkot and S.D.M. Kandhkot. Assistant Sessions Judge acquitted the complainant and others but the case before S.D.M. Kandhkot is still pending. On the day of the incident the complainant alongwith P.C. Rehmatullah in plain clothes came to attend the Court of S.D.M. Kandhkot at about 9‑30 a.m. When they reached out of the Court the present petitioners alongwith one Shahbazi and Horan son of Khairo armed with Lathis appeared there. Shahbazi challenged the complainant and P.C. Rahmatullah saying that the Court had acquitted them but they will kill them. Saying so, Shahbazi, Akhwani and Murad Ali gave Lathi blows to the complainant while Haroon, Kajlo and Bahram caused Lathi blows to Rehmatullah on his head. The complainant and P.C. Rehmatullah raised cries which attracted the witnesses Mashooq Ali son of Amir Ali Mistri who tried to rescue them but the accused ran away. The learned counsel for the petitioners contends that the apprehended arrest of the petitioners in the above case is mala fide and with ulterior motives as the local police is in league with the complainant party who are also police officers and that is why they have put section 307, P.P.C. in order to see that the petitioners and co‑accused go behind the bars. It is further contended by the learned counsel that the medical evidence in the case show that the duration of injuries is only 30 minutes. It is additionally contended by the learned counsel that the present complaint is motivated to coerce the petitioners who are members of the same family to give up the complaint filed by them against the complainant in the Court of S.D.M. Kandhkot. According to the F.I.R. the incident is alleged to have taken place on 29‑12‑1984 at 9‑30 a.m. while the F.I.R. was lodged with the police station by the complainant on the same day at 10‑45 a.m. From the medical evidence it appears that the complainant and witnesses were referred by the S.H.O. Kandhkot on the same day for medical examination but their time of arrival in the hospital is stated in, the medical certificate as 11‑30 a.m. while the duration of the injuries in the certificate is stated to be only 30 minutes. In view of the fact that the F.I.R. in the case itself was lodged at 10‑45 it is highly improbable that the complainant would have arrived in the hospital at 11‑30 p.m. on a reference by the S.H.O. The medical certificate also does not show the time of examination of complainant and his witnesses by doctor but assuming that the complainant and his witnesses were immediately examined on their arrival in the hospital the time which elapsed between the causing of the injuries and lodging of the F.I.R.I was more than two hours, therefore, the duration of the injuries shown in the certificate as 30 minutes raises a reasonable doubt as to the correctness of allegations made in the F.I.R. Keeping in view the fact that the incident is alleged to have taken place on a day when the proceedings of the case were fixed before a Court but the incident was not brought to the notice of the Court and the fact that complainant party are themselves police officers and it is alleged strongly by the applicants that they are attempting to coerce the applicant party to give up their complaint against them, coupled with the fact that there are obvious inconsistencies between the time of report and the arrival of complainant and his witness in the hospital and duration of injuries as shown in the medical certificate and that the injuries allegedly suffered by the complainant and his witnesses are all on non‑vital part of body and except one all are described as simple, the offence prima facie does not fall under section 307, P.P.C. and the case calls for further inquiry. I accordingly keeping in view the above peculiar circumstances of the case grant pre‑arrest bail to applicants in term of order, dated 4‑3‑1985. In Cr.B.A. No. 143/85 Saghir Ahmad son of Shoukatali has applied for pre‑arrest bail in a case which was registered against him on 15‑3‑‑1984 at 8‑30 p.m. immediately after the incident. It is alleged in the F.I.R. that the complainant had a Wara of buffaloes at Wallace Road, Sukkur. That on the day of the incident the complainant alongwith his brothers Mushtaq Ahmad and Sultan Ahmed went together to one of their relations Sabir to meet him who had a milk shop at Regent Cinema Sukkur. Sabir also met them there and afterwards while they were purchasing cigarettes from the Piri of Anwar at about 8‑30 p.m. the applicant alongwith Sabir and three other unknown persons, amongst them one armed with Lathi came there. The applicant after abusing the complainant's brother Sultan told them that they alleged against the applicant in his absence and instigated others not to spare and kill him. Upon that the applicant and others inflicted straight knife blow on Sultan Ahmed and person armed with Lathi gave blows to the head of Sultan Ahmed. 1n the result Sultan Ahmed fell down and blood started coming out of the wounds and he became unconscious, Upon cries of the complainant several persons gathered who rescued Sultan Ahmad giving oath of Holy Quran and after that the culprits left the scene. Mushtaq Ali and his other relatives with the help of Sabir took Sultan Ahmed to Civil Hospital, Sukkur for treatment and thereafter, the complaint was lodged. Pre‑arrest bail has been applied by Saghir Ahmed in the case on the ground that the case is mala fide and is based on personal motivation to disrespect the applicant and his family in the public and police is trying to arrest them. It is contended by the learned counsel for the applicant that although the incident is alleged to have taken place on 15‑4‑1984 but the police have now become active and are trying to arrest the applicant in the case. The medical certificate shows that there were as many as 8 injuries found; on the person of Sultan Ahmed who was examined by the doctor on the same day. Out of 8 injuries one injury on the left side of the chest just near the left nipple has been declared to be grievous injury while rest of the injuries are described as simple. All the injuries were alleged to have been caused by a sharp cutting weapon such as knife and the injuries were described as fresh. The medical evidence in the C case fully corroborates the version made in the F.I.R. However, in view of the inordinate delay in the arrest of the present applicant I inquired from the learned Asstt. A.‑G. the cause of delay. The learned A.A.‑G. with reference to the police papers available with him contended before me that three witnesses were examined on the same day when the report was lodged on 15‑4‑1984. Thereafter the police made first attempt to arrest present applicant on 16‑4‑1984 but he was not found and thereafter several other attempts were made and he was finally declared as absconder on 3‑8‑1984. It is also contended by the learned Asstt. A.‑G. that witnesses examined in the case have fully implicated the present petitioner. Interim pre‑arrest bail was granted by me in the case on 12‑3‑1985 after hearing the learned counsel for the applicant as it was alleged that the police has become active all of a sudden after about 10 months of the lodging of report but after hearing the learned Asatt.A.‑G. I am satisfied that the delay has been explained properly. On 14‑3‑1985 an additional affidavit was filed by the learned counsel for the petitioner in an attempt to show that the present case is the outcome of political differences which arose during elections of Provincial and National Assemblies. However, this additional affidavit appears to be an afterthought and is otherwise of no avail in the case. Firstly no such contention was raised either before the Sessions Judge or in this Court in the bail application of the accused and secondly the incident had taken place allegedly on 18‑4‑1984 much before the elections which took place only during the last month. Since the allegations disclosed in the F.I.R are fully corroborated by the medical evidence he case and the delay has been explained by, the learned Asstt.A.‑G. I do not find any justification or case for grant of pre‑arrest bail to the accused. Application for grant of pre‑arrest bail is accordingly dismissed and the interim bail granted to accused is withdrawn. M .Y.H. Petition dismissed.