2026 PLP 309 (MLD)

Amjad Ali Bohio, J.

Applicant/accused, Asghar Ali son of Roshan Ali Malik (hereinafter referred to as the ("Applicant"), has filed this bail application seeking pre-arrest bail as his bail application bearing number 1121/2024 was dismissed by learned Additional Sessions Judge-I, Mirpurkhas. The application is filed in FIR No. 34/2021, registered at Police Station Dilber Khan Mahar, for offences punishable under Sections 302, 324, 506(ii), 337-H(ii), 147, 148, 149, and 504 of the Pakistan Penal Code.

2. The allegations against the applicant summarily, are that on 08-06-2021 at about 6:00 p.m., the complainant, accompanied by his brothers Haji Muhammad and Azam Khan, his cousin Muhammad Anwar, Ameer Bux, and his son Dawood Ali, was present at a flour mill (Ata Chakki). At about 8:00 p.m., the accused Asghar Ali, Ashraf, and Ghulam Nabi, all armed with pistols, and Ali Hassan, armed with a repeater approached the complainant party and in exchange of harsh words, applicant Asghar Ali, allegedly shot Haji Muhammad (deceased) on the head. Ashraf allegedly shot Dawood Ali in the right leg, while Ali Hassan and Ghulam Nabi reportedly shot Ameer Bux Lund, injuring his shoulder. Subsequently, the applicant, along with Ali Hassan, left the scene. As the complainant party attempted to take the injured to the hospital, they reportedly heard cries nearby and saw other accused Ghulam Mustafa and Muneer Ahmed, both armed with pistols, Ghulam Murtaza, armed with a revolver; Arshad, armed with a repeater; and Mukhtiar, carrying a hatchet. These accused approached the complainant party, issued threats, and engaged in aerial firing. In the process, they allegedly injured a passerby, Hafeez, who was shot on the left hip. Afterward, the culprits fled the scene, and the complainant party shifted the injured to the hospital, where the complainant's brother succumbed to his injuries. Complainant lodged the FIR at the police station the following day at 2:00 p.m. This bail application has been filed in view of the above allegations

3. Learned counsel for the applicant argued that there is a 20-hours delay in the lodging of the FIR, for which no plausible explanation has been provided; that eight co-accused have already been acquitted in the same case by the trial court vide judgment dated 28-02-2023, that the applicant has raised a plea of alibi, asserting that he was not present at the place of the incident due to a fracture. He remained under treatment at Bone Care Trauma Centre, Hirabad, Hyderabad, from 15-02-2021 to 15-08-2021, and has falsely been implicated in the case. He further argued that co-accused Ghulam Murtaza and Ghulam Mustafa, who are the real sons of the applicant, were arrested. This caused the applicant severe mental shock, and he completely lost his senses, resulting in his disappearance. The applicant's absconsion was therefore not deliberate. The applicant is entitled to the concession of bail under the rule of consistency. The complainant has admitted enmity with the applicant. All the prosecution witnesses (P.Ws) are related to the complainant, making them interested and set-up witnesses. The applicant has no prior convictions. The learned counsel concluded by praying for the grant of bail to the applicant. In support of his arguments, he referred to relevant case law reported as Abdul Qudoos v. Hafiz Israr Ahmed and another (2024 SCMR 1705), Muhammad Sagheer v. The State through Police Station, Islam Gargh, Mirpur and another (2004 PCr.LJ 1925), Said Nabi v. Ajmal Khan and another (2024 SCMR 464), Akhter v. Khwas Khan and another (2024 SCMR 476) and Mir Muhammad v. The State through Prosecutor General Sindh (2024 SCMR 805).

4. On the other hand, the learned Assistant Prosecutor General (P.G.), assisted by the learned counsel for the complainant, strongly opposed the grant of bail to the applicant. They argued that the applicant, being the principal accused, is specifically nominated in the FIR for causing the fatal firearm injury to the deceased, Haji Muhammad; that the applicant remained a fugitive for a considerable period, which connects him to the commission of the offence, as such, he cannot claim the extraordinary concession of pre-arrest bail while being a fugitive from the law; that the 20-hour delay in lodging the FIR is adequately explained by the complainant, who was occupied with the funeral ceremony of his brother, Haji Muhammad, that there is no mala fide intention on the part of the complainant to falsely implicate the applicant in this case; that the offence under Section 302 of the Pakistan Penal Code (P.P.C.) falls within the prohibitory clause of Section 497 of the Criminal Procedure Code (Cr.P.C.); that sufficient prima facie evidence is available on record to connect the applicant with the alleged offence, that it is a settled principle of law that a fugitive from justice loses the right of bail. In support of their contentions, the learned counsel for the complainant relied upon relevant case law reported as Raza Khan v. The State through Additional Advocate General, Peshawar and another (2013 MLD 810), Yaseen v. The State (2012 MLD 751), Habibullah v. Qadir Khan and 2 others (2018 PCr.LJ 481), Atlas Khan v. Mazamullah Khan (1989 PCr.LJ 2044), Sardar v. The State (PLD 1979 Peshawar 16), Ibrahim v. Hayat Gul and others (1985 SCMR 382), Rais Khan v. Said Hanif and another (1979 SCMR 90), Sohail Waqar alias Sohaila v. The State and others (2017 SCMR 325), Muhammad Din alias Manna v. The State (1976 SCMR 185), 2013 PCr.LJ 1105, 2000 MLD 1046, 2012 SCMR 707, 1968 PCr.LJ 186, PLD 2009 SC 440, Ghulam Qadir v. The State (2022 SCMR 750), Rana Muhammad Arshad v. Muhammad Rafique (PLD 2009 SC 427), Muhammad Jahangir Khan and others v. The State and others (2020 SCMR 1270), (2015 SCMR 1394) [Supreme Court of Pakistan], Murad Khan v. Fazal-e-Subhan and another (PLD 1983 SC 82), Muhammad Safdar and others v. The State (1983 SCMR 645), Riaz Ahmed v. The State (2009 SCMR 725), Mst. Sobia Saghir v. The State (2017 PCr.LJ 819), Rana Abdul Khaliq v. The State (2019 SCMR 1129), Rana Abdul Khaliq v. The State and others (2019 SCMR 1129), Malik Zafar Abbass v. Agha Raza Abbass Qazilbash and another (PLD 2002 SC 529), (2003 SCMR 68) [Supreme Court of Pakistan), Muhammad Siddique v. Imtiaz Begum and 2 others (2002 SCMR 442), (2006 SCMR 1292), (2010 SCM R 1735), Shahzad Ahmed v. The State through F.I.A. Islamabad (2010 SCMR 1221), Syed Lakhat-E-Hasnain v. The State (2010 SCMR 855), Malik Aqeel v. The State (2011 SCMR 170), The State/ANF v. Aleem Haider (2015 SCMR 133), Abid Hussain and another v. The State (2024 SCMR 1608), Amanullah Khan and 03 others v. The State (2002 PCr.LJ 1934) and Ejaz Ahmed v. The State (2014 PCr.LJ 636).

5. I have carefully considered the submissions made by the learned counsel and have also reviewed the record. The applicant is explicitly nominated in the FIR, with a specific role attributed to him causing a firearm injury to the deceased, Haji Muhammad, by firing a pistol. The injury allegedly inflicted by the applicant struck the deceased on the head. The cause of death, as stated in the post-mortem report, is reproduced below: "Opinion regarding the cause of death; I am of the opinion that the cause of death is head injury resulting in hemorrhage and shock leading to cardio respiratory failure and death due to fire arm injury, in which vital organ and vessels damaged (brain and cerebral meningeal vessels) that is sufficient in ordinary course of life to cause death"

6. The medical evidence corroborates the version provided in the FIR. The primary argument advanced by the learned counsel in support of this application is that the co-accused in this case were acquitted by the learned Additional Sessions Judge-1/MCTC, Mirpurkhas. The counsel contended that since the same set of evidence was disbelieved in the case of the acquitted co-accused, it should also exonerate the present applicant from the charge of murder. However, this contention has already been considered and rejected by the learned Additional Sessions Judge-I. It is pertinent to note that the trial of the applicant will be conducted independently of the previous trial, in which the co-accused were acquitted. Accepting the counsel's argument would imply that the witnesses in this case would be examined merely as a formality or that their evidence from the previous trial could be taken into account, which is not permissible under the law. This position is supported by the precedent set in the case of Sardar v. State (PLD 1979 Peshawar 16). Furthermore, the applicant remained at large for more than three years following the occurrence and only surrendered in September, 2024 by filing a pre-arrest bail application before the trial court. This was long after the acquittal of his co-accused on 28-02-2023

7. In the present case, the applicant is specifically attributed with the role of firing at the deceased, resulting in his death. Prima facie case is under Section 302 of the Pakistan Penal Code, the punishment whereof falls within the prohibitory clause of Subsection (1) of Section 497 of the Criminal Procedure Code. In this regard, the principles laid down in Habibullah v. Qadir Khan and 2 others (2018 PCr.LJ 481) are relevant. The relevant excerpt from the judgment is reproduced below: Admittedly and as is evident from the record accused/petitioners remained absconder after the occurrence for a considerable long period and after acquittal of their co-accused, they have surrendered. Prima facie it appears that the petitioners/accused were waiting for the acquittal of their co-accused. If, in the attending circumstances of the case, they are granted bail merely due to acquittal of co-accused, then most of the accused would remain fugitive from law during disposal of the case of their co-accused. Wisdom is derived from the case of "Atlas Khan v. Mazamullah Khan and another" (1989 PCrLJ 2044 Peshawar), where it is held that the accused who absconded after the occurrence for noticeable period, would not be invariably entitled to bail merely because his co-accused had been acquitted in the case.

8. It is a well-settled principle of law that the plea of alibi can only be properly assessed by the trial court after the recording of evidence. Reliance is placed upon cases titled as Waqar-ul-Haq v. State (1985 SCMR 974), Bahadur v. Muhammad Latif (1987 SCMR 788), Omar Daraz v. The State (2004 SCMR 1019), and Muhammad Afzal v. The State (2012 SCMR 707). The contention raised by the counsel for the applicant with regard to the conflict between the ocular account and medical evidence, the same is not to be considered at the bail stage as held in case of Suhail Waqar alias Suhaila v. The State and others (2017 SCMR 325), as under: "So far as the conflict between the ocular account and the medical evidence, pointed out by the learned counsel for the petitioner is concerned, suffice it to observe, deeper appreciation of evidence is not desirable at the bail stage"

9. In the case of Muhammad Arshad v. Muhammad Rafique (PLD 2009 SC 427), the Honorable Supreme Court has summarized the grounds on which the benefit of pre-arrest bail can be extended, which are as under:- (a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives; (b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail; (c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt; (d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police, to cause irreparable humiliation to him and to disgrace and dishonour him, (e) such a Petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive from law; and finally that; (f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instance i.e. the Court of Sessions, before petitioning the High Court for the purpose;

10. The applicant is explicitly nominated with an active role in causing the firearm injury attributed to him. Following the occurrence, he fled and remained at large until after the acquittal of the co-accused. Although there is a 20-hour delay in lodging the FIR, no element of mala fide is apparent on the face of the record. The facts of the case laws relied upon by the learned counsel for the applicant are quite distinguishable from the facts of the present case and are therefore not applicable or relevant. The discretion exercised by the trial court in the matter of pre-arrest bail does not suffer from any illegality or arbitrariness. Consequently, without delving deeply into the merits of the case, I find no cogent grounds for granting pre-arrest bail to the applicant. As such, the interim pre-arrest bail granted on 29-10-2024 is hereby recalled, and the instant bail application is dismissed. JK/A-87/Sindh ???