2006 PLP 1433 (YLR)

MUHAMMAD MOOSA K. LEGHARI, J.

Through this application the complainant has prayed for cancellation of pre-arrest bail granted to respondents Nos.2 and 3 by District and Sessions Judge, Karachi West in Crime No.420 of 2005 registered at Police Station, Jackson, under section 324, P.P.C., wherein the applicantswere accused of causing murderous assault upon the complainant Muzzamil Shah and his father Muhammad Younus as a result whereof both of them were seriously injured. Besides raising different pleas, it is strenuously argued on behalf of the applicant/complainant that pre-arrest bail was granted in violation of settled principles of law, as no mala fides were alleged on the part of prosecution. It is contended that grievous injury was caused to Muhammad Younis on a most vital part of the body viz. Abdomen by way of stabbing, but due to grant of pre-arrest bail, the investigation was hampered and the evidence was destroyed. Conversely, it is contended on behalf of respondents Nos.2 and 3 that respondents were granted bail on merits keeping in view the cross cases filed by the parties against each other, and by holding that the case of the respondents was of further inquiry as it was yet to be determined as who was the aggressor. Learned counsel for the respondents further contended that the complainant ought to have approached the trial Court first, further that now case has been challaned and respondents are not misusing the concession of bail. Learned A.A.-G. has not supported impugned order contending that role of attacking the complainant party and causing injuries to them has specifically been attributed to the respondents and that the trial Court committed illegality in overlooking the conditions required for grant of pre-arrest bail, as such the bail order was not sustainable in law. Contentions raised have been considered and material placed on record has been perused. Medical certificate of Muhammad Younus reveals that he sustained injury in his abdomen which was declared as Jurh Ghayr Jaiffah Munaqillah. Grievous injury caused with Chhurri viz., a sharp cutting weapon, inflicted on the abdomen was most likely to cause death of victim. Besides the merits, the order passed by trial Court is absolutely silent with regard to any malice alleged on the part of the prosecution. Neither the same point was taken in arguments before the learned trial Court nor he has taken into consideration the requisite condition for grant of pre-arrest bail. Thus the pre-arrest bail was granted to the respondents Nos.2 and 3 in flagrant violation of the settled principles of law laid down in the case of Murad Khan PLD 1983 SC 82 and Zia-ul-Hassan v. The State PLD 1984 SC 192, and certainly without proper application of mind. In the circumstances, the order passed by trial Court is invalid, and unlawful, it needs to be reversed. Consequently pre-arrest bail granted to respondents Nos. 2 and 3 is cancelled. The trial Court shall take appropriate action. Needless to state that this order will not divest the powers of trial Court to consider post arrest application for bail, on it's own merits if, and when moved. H.B.T./MM-42/L Bail cancelled.