P L D 1988 Karachi 545 (PLP)

Applicants are being tried for offences under section 302, 307, 148, 149, 144 P.P.C. and 13‑D, Arms Ordinance. Incident took place on 30‑6‑1986 and the prosecution case is that five accused persons were duly armed with guns and were in the process of taking away cattle of the complainant. They were confronted by complainant and others and request was made by the complainant party for return of cattle. Meanwhile Amir Bux instigated others not to spare. Accused persons started firing. Khair Muhammad and Mashooq hit Haji Qadir Bux who fell down injured. Ayoub and Janib fired on the mouth of the complainant who was also injured on left side and right thumb. Jojo also fired at the complainant party. In the attack Haji Qadir Bux became injured in the chest and died at the spot. Fakir Muhammad and others came to the spot and saw accused persons duly armed taking away cattle and were identified by them. Complainant left P.W. Kaley Bux and others near the dead body and went to the police station to file the report. It is mentioned in the report that one year back one dacoit Sultan Jatoi related to the accused svgs arrested and suspicion was lodged on the complainant party. Applicants have filed orders of the learned Sessions Judge passed on 2?‑7‑1987, 23‑5‑1988 and 13‑6‑1987. Applicants have also filed copy of F.I.R. and its English translation. I have gone through all these papers minutely. It is correct that initially vide order dated 27‑7‑198? interim bail was granted by learned Sessions Judge to the two applicants namely Abdul Ghafoor and Abdul Karim but subsequently vide order dated 23‑5‑1988 interim bail was not confirmed and the bail application was dismissed. Counsel for the applicants has made grievance to the tact that case of ,the applicants was good for grant of bail before arrest but the same was not done for reasons which are not justifiable. He urges plea of bail before arrest on the grounds firstly that names of applicants are not mentioned in FIR or are not mentioned properly. Perusal of copy of FIR shows that in the body of the FIR at the very commencement of narrative part names of accused persons are mentioned as (1) Khair Muhammad s/o Muhammad Ali, (2) Ayoub s/o Khair Muhammad, (3) Mashooq s/o Amir Bux, (4) Janib s/o Amir Bux and (5) Jojo s/o Khan Muhammad Jatoi. It would be pertinent to mention at this stage that in FIR it is also stated that Khan Muhammad and Mashooq Ali fired with their guns at Haji Qadir Bux and Ayoub and Janib fired at Millan. It is also stated that Amir Bux instigated others not to spare complainant party. Objection is raised on behalf of the applicants that names of two applicants Jojo s/o Khan Muhammad and Mashooq s/o Amir Bux are not proper description of the names and nick names have been used which are not owned by these persons. When this objection was raised learned Sessions Judge called complainant and verified from him about nick names and the complainant confirmed the fact that Abdul Ghafoor is commonly known as Jojo and Abdul Karim has nick name of Mashooq. The other objection that has been taken before me is that applicants' names have been given as accused persons in FIR on account of previous enmity. I have read the orders passed by the learned Sessions Judge granting interim bail as well as order rejecting the bail application. These orders are detailed and well reasoned. Incident had taken place in broad daylight and all applicants were armed with guns. Applicants had taken away cattle of the complainant party. Haji Qadir Bux deceased was fired upon by Khair Muhammad and Mashooq and in the result thereof he died at the spot. Complainant was fired at by Ayoub and Janib. Incident is seen by complainant Millan who is injured eye‑witness and PW Fakir Muhammad and other persons who Came to the spot. In the circumstances this does not appear to be .the fit case for seeking indulgence for grant of bail before arrest. Learned Sessions Judge has given valid reasons in his order of rejecting the bail before arrest application. It is pertinent to mention here that there is difference between bail before arrest and bail after arrest. Bail before arrest is a concession of law and is to be granted in exceptional cases in which the facts so warranted particularly when the arrest is ~ being made for ulterior motives such as humiliation and unjustified harassment and prosecution is motivated to cause irreparable injury to reputation and liberty or police is motivated for political reasons. Counsel is to satisfy the Court that arrest was being made with male fide intention on the part of police: Reference can be made to the case of Murad Khan v. Fazal‑e‑Subhan and another (P L D 1983 Supreme Court 82). Bail before arrest cannot be claimed as a matter of legal right in each case and also it cannot be expected that it would be granted in each case unless legal requirements laid down are met. It is to be kept in view that bail granted before arrest causes setback in the investigation and can stand as stumbling block in the way of recovery of incriminating articles. Bail before arrest is not to be granted as a matter of right but can be granted as an act of indulgence sparingly in suitable cases in which facts are such and further requirements laid down by the Supreme Court have been followed. I am so much satisfied that it is not a fit case for grant of bail before arrest particularly when the offence is murder and one other eye‑witness has been injured and the attack was made by the applicants with guns and the incident took place in broad daylight, that I do not consider it necessary to issue notice to the State because facts are glaring and perusal of the documents produced by the applicants is sufficient to help me to come to the conclusion as I have. For the facts and reasons stated above I dismiss this application for bail before arrest. Let the machinery of law be set in motion and the law take its own course. M.B.A./A‑370/K Application dismissed.