2012 P Cr (PLP)

SHAHID ANWAR BAJWA, J.

F.I.R No.37 of 2011 was recorded at Police Station, Kot Lalu, on 16-7-2011 at 8-30 p.m. for an incident alleged to have occurred on 15-7-2011 at 5-30 p.m. The complainant stated that he had four brothers and owned agricultural land which they cultivated themselves. On 30-5-2011 his brother Muhammad Aslam, Muzaffar Ali and father were releasing water in their lands when Hameed Gabol along with five companions kidnapped brother Aslam. Such case was registered. Police got Muhammad Aslam released and challaned the case. In order to force the complainant to withdraw the case, applicant No.1 and other accused persons used to issue threats. Application was filed in the High Court against such harassment. On the fateful afternoon, brother Muhammad Aslam and father had gone to town for some work. The complainant and his brother and cousin were digging their sugarcane crop when they saw their father and brother Muhammad Aslam driving a motorcycle returning from town and as they reached near the land of a neighbour suddenly six persons on two motorcycles, with three persons on each motorcycle, came. Father and brother of the complainant alighted from their motorcycle. They were asked to withdraw the abduction case which they refused. It is alleged that two co-accused fired from their guns upon the father and another co-accused fired upon brother Muhammad Aslam. Another co-accused and two un-identified persons are also alleged to have resorted to aerial firing. Fire reports attracted villagers. Father and brother died and F.I.R. was registered. Learned counsel for the applicants submitted that it is not alleged in the F.I.R. that the applicants were present at the place of vardat and only allegation against the applicants is that of conspiracy and no evidence of conspiracy has been, so far, unearthed: certainly no allegation in this regard has been unearthed during investigation. He submitted that F.I.R. was registered after one day's delay and possibility of consultation and deliberation cannot be ruled out. He submitted that complainant and accused party belong to two opposite political parties and this F.I.R. is motivated out of said political rivalry. Learned counsel relied upon Muhammad Firdaus v. State (2005 SCMR 784), Basharat Karim v. Muhammad Ishfaq Chandoor (2007 SCMR 1546) and Hyder v. State (2009 S.L.J 655) Miss Rizwana Jabeen Siddiqui, learned counsel for the complainant submitted that enmity is admitted because earlier Muhammad Aslam was abducted and that case is still pending. She submitted that no mala fides have been attributed against the police and relied upon Muhammad Arshad v. Muhammad Rafique (PLD 2009 SC 427). Mr. Zulfiqar Ali Jatoi, learned Deputy Prosecutor-General opposed grant of bail application and submitted that deceased had filed petition expressing apprehension at the hands of present applicants and this indicated existence of conspiracy. He submitted that deeper appreciation of evidence cannot be taken at the bail stage. I have considered the submissions made by the learned counsel and have also gone through the record. Admittedly, in the F.I.R. it is not stated that any of the present applicants was present at the scene and time of vardat. Contention of Mr. Jatoi was that earlier the deceased filed a petition expressing apprehension at the hands of present applicants and therefore it indicated prima facie a case of conspiracy. His submission was that deeper appreciation of evidence cannot be undertaken at the bail stage. In my opinion, in the circumstances, submission of the learned Deputy Prosecutor-General is not well-founded. No doubt it is trite law that at bail stage deeper appreciation of evidence is not to be resorted to; however, this is a case where so far there is no evidence of conspiracy: at least neither learned counsel for the complainant nor learned Deputy Prosecutor-General was able to point out any such shred of evidence. The fact that the deceased expressed an apprehension against the present applicants party is not sufficient to come to, even, prima facie conclusion that there is evidence of conspiracy against the present applicants. Miss Rizwana Jabeen Siddiqui relied upon Muhammad Arshad's case (supra). In the reported case the honourable Supreme Court after laying down the parameters, assessed the evidence and decided that the applicant is not entitled to bail. On the other hand, learned counsel for the applicant relied upon Basharat Karim's case (supra) where the honourable Supreme Court observed as under:-- "It is the settled principle of law that bail before arrest can be granted when the arrest of accused is with ulterior motive, mala fide or is due to false implication apparent on the face of record. Even the political rivalry has been considered to be an ingredient for the grant of pre-arrest bail as held in the case of Murad Khan v. Fazal-ur-Rehman and another, PLD 1983 SC

82. It was for the first time, this Court in the case of Jamaluddin v. The State 1985 SCMR 1949 while granting pre-arrest bail took into consideration the factum of merits and the main reason which weighed with this Court was that he was empty-handed at the time of incident. Thereafter, this Court in the case of Meeran Bux v. The State and another PLD 1989 SC 347 set aside the order of the High Court cancelling pre-arrest bail of appellant on the ground that appellant did not cause fatal injury on the vital part of the body and also did not abuse the concession of bail in any manner for more than one year." Muhammad Firdaus's case (supra) can also be relied upon in this regard. It is clearly contended that the applicant and the complainant belong to the opposite political camps and such ground has been considered a valid ground for grant of pre-arrest bail by the honourable Supreme Court in Murad Khan's case (supra). Even merits of the bail application have been considered by the Supreme Court. In the present case, as stated above, there is no evidence of conspiracy collected so far and in the F.I.R. presence of the applicants at the place of vardat is not even alleged. Result of the above discussion is that this bail application is allowed and the bail already granted to the applicants is confirmed. However, since the alleged offence is murder of two persons, amount of PR bond and surety is enhanced to Rs.300,000 each. M.W.A./A-7/K Pre-arrest bail confirmed.