1985 P Cr (PLP)

A.A. Muhammadally, Asstt. A.‑G for the State. Applicant Fateh Muhammad has filed this application for anticipatory bail. The case against the applicant and others has been registered under section 325/34, P.P.C. at Police Station Moro, District Nawabshah on 3‑1‑1984. Brief facts of the case as narrated in the F.I.R. are that on 14‑12‑198. , Sain Bux went and informed his uncle, complainant Pir Bux that police constables of Moro Police Station namely Abdul Sami and Rajab were taking away his Datsun Pick Up to police station but he paid Rs.500 and got the Datsun released. Again on the night of 15‑12‑1984, driver Allah Bachayo and cleaner Allah Bux of Datsun Pick bin came and informed the complainant that today again Abdul Sami and Rajab came and told that there is an order of officers that the vehicles are needed for Election Duty and they had taken away Pick Up to police station. On 16‑12‑1984 driver and cleaner went to police station and at about 12‑00 noon Cleaner Allah Bux came and informed Pir Bux that Sain Bux was beaten at police station due to which his leg has been broken. The complainant went and saw that Sain Bux was lying in injured condition on the ground. On enquiry he informed Pir Bux that Head Constable Fateh Muhammad, P.C. Rajab, P.C. Abdul Sami, P.C. Budho, P.C. Hameed and Hussain Bux had beaten him with the butts of their rifles. He further told him that other constables also gave him fist and kick blows. At that time Allah Ditto Zardari, Haji Laiq Zardari, Allah Bachayo Driver and Cleaner Allah Bux were also present and they got Sain Bux released. Complainant brought the injured to Nawabshah Hospital and then made an application to D.S.P. who forwarded the same to Inspector C.I.A. for necessary enquiry. The injured was referred to hospital for examination and treatment. The C.I.A. Inspector then registered the case under section 325/34, P.P.C. The application for anticipatory bail on behalf of applicant Fateh Muhammad and co‑accused was filed on 2‑1‑1985 and the learned Sessions Judge Nawabshah on very day granted them interim bail before arrest. On 12‑1‑1985 the learned Sessions Judge confirmed the bail of six co‑accused but the application in respect of Fateh Muhammad was rejected and his bail was not confirmed. Applicant Fateh Muhammad then filed application for bail before arrest in this Court and ad interim bail was allowed to him by an order, dated 16‑1‑1985. On 28‑1‑1985 application for confirmation came up but on that day Assistant Advocate‑General was asked to ascertain whether there is any apprehension of arrest to the applicant. The applicant was present and he was directed to appear on 30‑1‑1985 but the learned Advocate stated that he will file application for condonation of absence of applicant but no such application was made till today. The matter was again adjourned to 31‑1‑1985. I have heard Mr. Pir Bux Khamisani, Advocate for the applicant and Mr. A.A. Muhammadalley, Assistant Advocate‑General for the State. Mr. Khamisani has sunkitted that there is delay in lodging the F.I.R. and that offence is not a serious one, therefore, applicant be granted anticipatory bail. Mr. A.A. Muhammadalley, Assistant Advocate‑General has opposed the bail application and stated that this is not a fit case for bail before arrest. The bail before arrest is considered on the ground when mala fide or ulterior motive is shown on behalf of prosecution or some special features justifies discouraged the practice of grant anticipatory bails A frequently laid down principles in which bail before arrest is to be considered. I refer case of Muhammad Shafique and another v. The State 1982 S C M R 384, wherein it has been held that it is not possible for High Courts to declare at bail stage if complaint made against petitioners being completely false and without foundation and could not be said that no incident having taken place. In a case of Muhammad Safdar and others v The State 1983 S C M R 654 it has been held that bail before arrest is not a rule in cognizance offence and anticipatory bail could only be allowed only when petitioner apprehends arrest due to ulterior motive, or some peculiar features of the case justifies exercise of discretion in his favour. In a case of Murad Khan v. Fazal Subhan P L D 1983 S C 82 in which the entire case law on the grant of pre‑arrest bail has been discussed and their Lordships observed as under:‑ "The criteria laid down in Hidayat Wish Khan'" case has not undergone any change so far. The three principles laid down therein have to be strictly followed. This power should paringly be exercise in appropriate case. The Courts should strictly avoid the exercise of this power at randon which is likely to embarras the prosecution in investigation as usually is the general complaint. The balance has to be kept and each case has to be dealt with on its own merits The Court should seriously apply its mind before passing the order of pre‑arrest bail. I must, however, make it clear that Courts are the guardians of liberty, of citizens. The abuse of power by the police to rope in innocent persons in order to humiliate them and to cause irreparable loss to their reputation should be equally kept in view. The golden principles in Hidyatullah Khan's case must strictly be followed." Finally in a case P L D 1984 S C 192 Zia‑ul‑Hassan v. The State, it has been held that pre‑arrest bail within few days of registration of the case without application of mind to serious question involved in case as a matter of course is not appreciated and their Lordships have also discussed the condition of grant of pre‑arrest bail and bail after arrest. I reproduce the observations of Supreme Court as under:‑ "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 is 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 the illegal order brought before it for scrutiny. A copy of this judgment shall be sent to the learned trial Judge who passed the order impugned before the High Court so that he should further study the law on question of pre‑arrest bail. " In the present case there is nothing to show that there is any mala fide or ulterior motive of prosecution to implicate applicant falsely. On the contrary applicant is a police constable and case haw been registered at police station at the intervention of higher authorities. The delay in F.I.R. has been fully explained. I do not like to discuss the merits of the case but suffice to say that the allegation against the applicant is very serious that he being the police officer custodian and B guardian of life, respect and a property of a people has been charged for assaulting in brutal manner to a public man because he refused to give his Pick Up for "Begar". Applicant did not appear on 30‑1‑1985 and 31‑1‑1985 at the time of confirmation nor application for adjourment was made. In the circumstances as stated above I am not inclined to grant him anticipatory bail and order primed on 16‑1‑1985 is recalled. Before parting with this order there observed that learned Sessions Judge has not only applied his mind properly in granting anticipatory bail to co‑accused of this case, but has disregarded the mandatory provisions of the law. The condition for the pre‑arrest bail as laid down under section 498‑A, P.P.C. have not been complied with. The section 498‑A, Cr.P.C. reads as follows:‑ "No bail to be granted to a person not in custody, in Court or against whom no case is registered, etc. Nothing in section 497 or section 498 shall be deemed to require or authorise a Court to release on bail, or to direct to be admitted to be, shall be defective only against him and is specified in the order or direction." This case against the applicant and others was registered on 3‑1‑1985 where as learned Sessions Judge granted interim bail to applicants on 2‑1‑1985 i.e. one day before the case was registered when one of the condition for grant of bail is that applicant is not to be released when case is not registered and this condition is a mandatory as word "shall" has been mentioned in section 498‑A, Cr.P.C. The learned Sessions Judge while confirming the bail of co‑accused has not shown in its order that there is any mala fide or ulterior motive of the prosecution in implicating the applicants who were granted anticipatory bail, therefore, in my view the learned Sessions Judge has not considered the case‑law given from time to time by the superior Courts and has 1 exercised jurisdiction arbitrarily without applying his mind and has ignored the legal aspects for which the bail before arrest is granted. In these circumstances I suggest that the learned Sessions Judge to reconsider his own order in light of my above observations. In future he is advised to refer case‑law of superior Courts while granting pre‑arrest bail. A copy of this order be sent to the Sessions Judge. M. Y. H. Bail refused.