1980 P Cr (PLP)

Rana Zia‑ul‑Haq has filed the present petition for pre‑arrest bail in case F. I. R. No. 170 dated 24‑8‑79, registered at P. S. Sadar, Faisalabad under sections 3021307, 354/448, 342/382, 148/149, P. P. C. contending that he has been falsely implicated in the case at the instance of D. S. P., Sadar Faisalabad with whom the petitioner had some dispute over the land inherited by the petitioner, that there was no motive for the petitioner to attack the complainant party as the dispute over the lease of the land was between the complainant party and Shahab‑ud‑Din; that the allegation made against the petitioner in the F. I. R. that he fired a shot with his gun injuring the legs of Gut Muhammad deceased is not supported by the medical evidence as the post‑mortem examination did not reveal any fire‑arm injury on the body of Gul Muhammad ; and that he being a respectable Zamindar of the Illaqa would suffer humiliation on account of unjustified arrest by the police.

3. The F. I. R. in the case was lodged by Mst. Ghafoor Anwar Begum. It was. stated by her that on 24‑8‑79 at about 9.00 a.m. Zia‑ul‑Haq petitioner alongwith his brother Sana-ul‑Haq, Shahab ud‑Din, Mukhtatr, Muhammad Ali, Liaqat Ali and Sharafat Ali had attacked her when she was present in a tent which she had set up in the garden in her land for residential purpose. Her husband Gul Muhammad and her tenants Sultan, Iqbal, Waryam, Akbar and Muhammad Fazal were also present there. Zia‑ul‑Haq petitioner was armed with a gun while Bashir Zia Akhtar had a revolver with him. The other assailants were armed with lathis. Zia‑ul‑Haq‑ injured the legs of her husband with a gunshot fired by him while Akhtar Zia fired shot with his revolver which resulted in injuries on the right fore‑arm of her husband: Shahab Din and Muhammad Ali accused gave blows to Gul Muhammad with their sticks while Zia‑,ul‑Haq hit him with the butt. of his gun. Akhtar Zia also injured Akbar by firing a shot with his revolver. The assailants also caused injuries to her other tenants who were present there. The incident was also witnessed by Rana Muhammad Younus and Rana Muhammad Sarwar who were present in the tent. After injuring the informant Mst. Ghafoor Anwar Begum, her husband and others the assailants took them in a truck to the residence of Rana Zafar, Advo cate, at Faisalabad. Rana Zafar also gave beating to Mst. Ghafoor Anwar Begum and her husband Gul Muhammad. Later on they were sent to the Civil Hospital where Gul Muhammad succumbed to the injuries received by him. The motive for the assault by the accused was that Zia-ul‑Haq and his companions wanted, to obtain the Possession of the land which Mst: Ghafoor Anwar Begum had Obtained on lease.

4. The petitioner was allowed interim bail on the ground that the prosecution version as given in the F. T. R. was not supported by the medical evidence inasumch as no fire‑arm injury was found on the person of Gul ‑Muhammad deceased at the time of post‑mortem.

5. The learned counsel appearing on behalf of the State has con tended that no case for pre‑arrest bail has been made out by the peti tioner as there is nothing .to show that the petitioner had any apprehen sion of harassment by the police on account of ulterior, motive. The petitioner has made only a vague allegation in his petition that the D. S " P. Sadar 'Faisalabad is inimical towards him on account of some dispute over a piece of land inherited by the petitioner. It is also contended by the counsel for the State that in a petition for pre‑arrest bail, the Court has to consider whether the petitioner has a genuine apprehension of being harassed by ‑the police on account of malice or some ulterior motive. The prosecution case is not to be considered on merits as it is done only where the accused seeks bail after arrest be cause the Court has to see whether there are no reasonable grounds for believing that the accused has committed a non‑bailable offence but there are sufficient grounds for further inquiry into his guilt. A reference has been made to Sh. Zahoor Ahmad v. The State (P L D 1974 Lah.256) to which it was held that while exercising the jurisdiction. to allow pre‑arrest bail under section

498. Cr. P. C. the Court has to see whether there is a genuine apprehension of immediate ‑ arrest of . the petitioner; whether the petitioner has surrendered to the Courts; whether he .ap prehends harassment and humiliation of unjustified arrest: whether it is otherwise a fit case on merits for allowing bail to the petitioner ; and whether the petitioner was justified for submitting his petition for pre arrest bail directly in the High Court. It was also urged by the learned counsel for the State that the petitioner was present at the time of occurrence and that he had fired a short with his gun. He had also given blows to Gul Muhammad deceased with the butt of his gun. The mere fact that no fire‑arm injury was found on the person of Gul Mohd. deceased at the time of post‑mortem examination would not prove the innocence of the petitioner because the four injuries which were found to be sufficient to cause‑ the death of Gul Muhammad were caused with blunt weapon and the petitioner had used the butt of his gun when he gave blows with it to the deceased. Thus even on merits the petitioner has not been able to show that there are no reasonable grounds for believing that he has not committed any offence. There is also an alle gation against the petitioner that he had removed the golden bangles and wrist watch of Mst. Ghafoor Anwar Begum:

6. I have heard the parties' counsel. There is no doubt that apprehen sion of arrest by the police on account of some ulterior motive is one of. The considerations which is taken into account by the Court while allowing pre‑arrest bail but it is not the only consideration which is kept in view. Even in the case of Sh. Zahoor Ahmad v. I he State referred to by the learned counsel for the .State it was laid down that the Court has also to see whether on merits the case was fit for allowing. bail. Thus it cannot be said that in a case of 'pre‑arrest bail the Court should not examine the merits of the case. In Muhammad Bashir v. Crown (P L D 1952 Lah.254) it was observed that the restrictions that bail before arrest should be granted only where arrest would be for ulterior motives or would cause irreparable harm were not intended to be rigidly adhered to in every case. In Ghulam Abbas Khan v. Zaka Ullah and 11 others (P L D 1976 Lah.21) it was held that although one of the main consideration for grant of bail before arrest was whether the prosecution was motivated by malice and whether the accusation was of a nature which could have been trumped up by the adversaries. the accused, however, was bound to show that even on merits he was entitled to an order of grant of bail. The merits of the case are also kept in view by the Court because even in the absence of any ulterior motive on the part of the police to arrest the .person applying for pre‑arrest bail there will be no justification in turning down his request where it' is found that further inquiry is necessary for determining his guilt. Mst. Ghafoor Anwar Begum has specifically states] in the F. I. R. that the petitioner had fired a shot with his gun which had hit her husband Gul Muhammad resulting in injuries to his both legs but at the time of post‑mortem of the dead body of Gul Muhammad no fire‑arm injury on his legs was found. Thus there is apparent inconsistency in the ocular account given by Mst. Ghafoor Anwar Begum and the medical evidence. How this inconsistency is ex plained by Mst. Ghafoor Anwar Begum and how far that explanation is, acceptable‑will be considered only at the trial by the trial Court. But for the purpose of bail the aforementioned inconsistency is quite significant.

7. As for the blows allegedly given by the petitioner to Gul Muham mad with the butt of his gun it is not known whether the fatal injuries received by Gul Muhammad were caused by the petitioner or by the other assailants because it is alleged that Shahab‑ud‑Din and Muhammad Ali had also given blows to him with the lathis.

8. The allegations that the petitioner had forcibly removed the; golden bangles and wrist watch of Mst. Ghafoor Anwar Begum has also to be looked into by the trial Court along with the other allegations made against the petitioner.

9. In view of the circumstances noticed above the petitioner's case falls under subsection (2) of section 497, Cr. P. C. inasmuch as further inquiry is necessary for determining the guilt of the peti tioner. The investigation of the case has already been completed as disclosed by Mr Muhammad Ashraf, D. S P. Crimes Branch, Lahore who produced the record in Court. Under the' circumstances pre‑arrest bail allowed to the petitioner on 28‑8‑79 is confirmed. Petition allowed