P L D 2000 Karachi 13 (PLP)

In Criminal Bail Application No.159 of 1999, the same applicant viz. Riaz Ahmed Goharshahi seeks bail before arrest in F. I. R. No. 19 of 1999 lodged with Police Station City, District Hyderabad on 16‑3‑1999 to the effect that the applicant had produced the licensed T.T. pistol of accused Muhammad Nadeem in Crime No. 10 of 1999 before D. ST. City Qazi Chand Muhammad in presence of Police Mushirs and after confirmation regarding the authenticity of said licence from the Deputy Commissioner, Sanghar, it transpired that the same was not issued in the name of accused Muhammad Nadeem and was a forged one. Accordingly, a case under section 13‑D of the Arms Ordinance was registered against the applicant as well as accused Muhammad Nadeem for possession of an unlicensed pistol. In the above facts and circumstances learned counsel submits that both the F.I.Rs. are baseless and concocted and have been manoeuvred by certain segments of the Ulema who are opposed to the applicant's religious beliefs who is a believer in human values and whose religious school (Astana) is open to all, persons regardless of race, creed, religion or status. Accordingly,' certain sects of the Ulema have branded the applicant as a heretic and apostate and hence punishable with death. In this connection, learned counsel has referred to various ‑newspaper cuttings, which carry items regarding head money having been placed upon the life of the applicant by such Ulema. Learned counsel further submits that the allegation regarding the property dispute between the applicant and the complainant as well as the deceased is a thing of the past since the civil suit filed by the complainant against the applicant was disposed of somewhere in 1997. In support of this fact, a certified copy of the said dismissal order passed by the learned Civil Judge, Kotri has been relied upon. Further learned counsel submits that there is no medico‑legal evidence connecting the accused as well as the applicant with the crime in question. Next, learned counsel has relied upon the affidavits of Muhammad Ayoob, Abdul Ghafoor and Waheed Ahmed according to whom, the applicant was at Karachi on the day of incident, which, it is submitted, is sufficient alibi to establish the applicant's innocence. As regards Criminal Bail Application No. 159 of 1999 learned counsel for the applicant submits that this is a continuation of the earlier attempts by the Ulema opposed to the applicant to involve him in false and concocted cases since the earlier attempt had failed and the applicant had been granted bail before arrest by this Court. Learned counsel has relied upon the fact that the F.I.R. was lodged belatedly viz. almost after one month of the date of the incident and secondly that if the licence was a forged one, there should be no reason why the applicant would voluntarily surrender the same alongwith the weapon to the police authorities. Learned counsel says that in fact in order to cooperate with the police authorities in the investigation of the earlier F.I.R. No. 10 of 1999, the applicant had decided to surrender the licensed weapon of accused Muhammad Nadeem to the police, which had malafidely being converted into a criminal case. In any event, learned counsel says that the S.H.O. Police Station City has advised the learned A.A.‑G. vide letter dated 24‑3‑1999 that the applicant was innocent as regards the allegations contained in F.I.R. No. 10 of 1999. Consequently, learned counsel has prayed that interim bail earlier granted to the accused be confirmed. He has relied upon the cases of Abdul Hameed Jatoi v. The State 1973 PCr.LJ 1032; State v. Mukhtar Ahmed Awan 1991 SCMR 322; Jam Sadiq Ali v. The State 1989 PCr.U 1910, Dr. M. Shoib v. The State. 1997 SCMR 1234 and Abdul Hai Siddiqui v. The State 1993 PCr.LJ

446. Learned counsel further submits that in the challan filed in F.I.R. 10 of 1999 accused Rashid has been dropped and Talat's name (applicant's son) has been added. Learned counsel submits that at the bail granting stage this exercise is to be considered in the applicant's favour. In this regard he has relied upon Amjad v. The State 1,982 SCMR 955; Manzoor v. The State PLD 1972 SC 81; Zahid Paris v. The State 1995 PCr.LJ 5; Amanullah v. The State 1997 PCrLJ, 1578. Lastly learned counsel is of the opinion that in the circumstances of the case, the applicant cannot be connected to the crime of murdering the accused in F. I. R. No. 10 of 1999 as yet there is no evidence regarding his abetment thereto and has, in this regard, relied upon Aziz‑ur‑Rehman v. The State 1985 PCr.LJ 1282 and Zulfiqar Ali v. The State 1994 SCMR

549. On the other hand, learned A. A.‑G. has vehemently opposed the confirmation of bail. earlier granted to the applicant on a number of grounds. Firstly, it is the learned A.A.‑G.'s contention that all the accused in F.I.R. No. 10 of 1999 are the personal security guards of the applicant and belong to a security company and hence they can only act with the knowledge of and upon instructions from the applicant., Secondly, it is submitted that accused Muhammad Nadeem has conferred to the crime in his statement given under section 161, Cr.P.C. and also that the weapon in question, which was surrendered by the applicant is the same weapon used for the murder of deceased Abdul Majid. Thirdly, learned A.A.‑G. submits that the affidavits regarding the applicant's presence at Karachi on the day of incident at Hyderabad are vague since it is not clear from such affidavits as to on which date he was at Karachi as the words used are "same day". Even otherwise he has relied upon Naseer Ahmed v. The State PLD 1997 SC 347 for the proposition that affidavits at bail stage cannot be considered. Finally, learned A.A.‑G. submits that for pre‑arrest bail the pre‑condition is an allegation .of malicious prosecution launched for the purpose of bringing the applicant into disrepute and lowering his esteem in the eyes of the public and normally it is considered in political cases viz. in the case of Jam Sadiq Ali, Mukhtar Awan and Abdul Hameed Jatoi (supra). Lastly. learned A.A.‑G. has submitted that in bail before arrest matters it is the settled principle of law that in the first instance the Sessions Court has to be moved before coming to the High Court. He has also relied upon the following cases:‑‑ (1) Muhammad Arshad v. The State 1996 SCMR 74; (2) Lt.‑Gen. (Retd Sabeeh Qamar‑uz‑Zaman v. The State 1997 PCr.LJ 1765; (3) Abdul Razzak v. The State 1998 PCr.LJ 1360; (4) Katbar v. The State 1998 PCr.LJ 1438; and (5) Khalilur Rehman v. The State 1998 PCr.LJ 1625 In rebuttal Mr. Qurban Ali Chohan for the applicant says that at the bail stage, the defence, pleas can always be considered and has relied upon the following cases for this proposition viz. Manzoor v. The State (supra) and Muhammad Hussain v. Muhammad Anwar Ahmed Khan 1975 SCMR

151. Secondly, learned counsel has contended that no value can be attached to the accused statement under section 161, Cr. P. C. since under said section only the prosecution witnesses statements are to be recorded and not the accused. Next, learned counsel has submitted that whether or not the accused were acting under the instructions of the applicant is a question of fact which can only be decided by the trial Court after recording evidence. Finally, learned counsel has submitted that in appropriate cases it is settled law that the superior Courts will grant bail before arrest when it is established that the police are actively looking for the applicant and would arrest him at sight as in the case of Mr. Shoib Suddle v. The State and The State v. Mukhtar Awan (supra). I have heard both the learned counsel and the learned A.A.‑G. and my conclusions are as follows:‑‑ It is settled law that in matters regarding bail before arrest there should be an allegation of mala fides and ulterior motives which should, prima facie, be substantiated by the material on the record. It should also, prima facie, be established that unless such bail is granted the applicant would inter alia suffer irreparable loss including his honour, dignity and self‑esteem. I., this regard reference can be made to Muhammad Safdar v. The State 1993 SCMR 645, Ziaul Haq v. The State PLD 1984 SC 192, Shabbir Ahmed v. The State PLD 1981 Lah. 599; AjmaJ Khan v. Liaquat Hayat 1988 MLD 880 and Raza Muhammad Siyal v. The State 1998 SCMR 1223. However, as in other factual circumstances surrounding any bail matter these need not either be proved at the bail granting stage or established beyond any shadow of doubt. The Court has to see firstly that there is an allegation of mala fides and secondly that sufficient material has been placed on the record to, prima facie, substantiate such allegation. Consequently, it is not necessary that bail before arrest should only be reserved for political personalities whom, the Court should assume are being victimized through the police machinery by their political opponents and secondly should automatically reach a conclusion in such cases that pre‑arrest bail is due and should be granted. In my opinion bail, whether pre or post arrest, is a right of every accused provided he is entitled to the same and can satisfy the Court that in the circumstances of his particular case the Court should give him relief. In the present case. I am satisfied on the facts thereof that sufficient material has been placed on the record to prima facie substantiate the allegation of malicious prosecution at the hands of the applicant's religious opponents. The applicant claims himself to be a person who is devoid of any religious bias and says that his A'astana is open to all persons and further alleges that as a result of such beliefs his opponents are bent upon prosecuting him, which is prima facie established by various newspaper items whereby certain segments of the Ulema .have placed head money upon the life of the applicant declaring him to be a disbeliever and an apostate. As regards the cases cited at the Bar by the learned A.A.‑G. regarding pre‑arrest bail, in my view, the facts therein are distinguishable from those appearing .in this case as in the said cases the Court carne to the conclusion that there was no mala fides involved etc. These cases are Muhammad Arshad v. The State, Sabeeh Qamar‑uz‑Zaman v. The State, Abdul Razzaque v. The State and Katbar v. The State (supra). It is also settled that normally when the applicant approaches the Superior Courts for bail before arrest, he is directed to first exhaust his remedy before the concerned District Judge. However, this is not a hard and fast rule and in appropriate cases where it can, inter alia, be establihsed that the applicant is prevented from approaching the District Court, the Superior Courts have entertained such applications and, if merited, pre‑arrest bail has been granted. In this regard reference can be made to Shoib Suddle v. The State and The State v. Mukhtar Awan (supra) whereby the Honourable Supreme Court did not consider it necessary that the applicant should first approach the District Court for his remedy before coming to the High Court. In the present case, too, it would be seen that after grant of pre‑arrest bail in Bail Application No.200 of 1999 another case has been lodged under section 13‑D of the Arms Ordinance, whereby the applicant has been accused of possessing an unlicensed weapon, which is the subject‑matter of Criminal Bail Application No. 159 of 1999, which case according to Mr. Qurban Ali Chohan is in the process of being dropped by the prosecution. Earlier, too, the applicant was granted interim bail in F.I.R. No. 120 of 1997, vide Criminal Bail Application No.527 of 1997 by this Court, which has since been confirmed vide Order dated 21‑11‑1997. It would, thus, be seen that, prima facie, it appears that the police seek to arrest the applicant on one pretext or the other. Consequently, I am satisfied that the applicant has correctly approached this Court for relief in the facts and circumstances of the case. As regards the facts of the case itself it would be seen that there is no allegation of any direct role of the applicant in the incident in question: that he in conspiracy and abetment with the accused is responsible for the death of the deceased. The reason cited in the F.I.R. for this abetment is a property dispute between the complainant and the deceased. However, it appears, at this stage, that said property dispute related to the year 1997 and hence, prima facie, it is strange as to why should the applicant wait so long before wreaking , his vengeance upon the deceased. So also it appears from the affidavits of certain persons that the accused was at Karachi on the day of incident. This piece of evidence, in my view, can be considered at the bail granting stage as per Manzoor v. The State and Muhammad Hussain v. Muhammad Anwar Ahmed Khan (supra). It would also be seen that as per settled law the opinion of the police authorities regarding the guilt or innocence of the accused cannot be considered at the bail stage and it is up to the trial Court to do so after appreciation of the evidence. Reference in this regard can be made to Manzoor v. The State and Amanullah v. The State (supra). Consequently, in my view, the exercise of dropping of an accused and substituting him with another in the challan cannot carry any weight at the bail stage. Finally it also appears that the applicant is being involved unnecessarily in other cases viz. under F.I.R. No. 10 of 1999 when the purpose in surrending the weapon in question seems to be to assist the police in the enquiry. For all the foregoing facts and reasons, I am of the opinion that this is a matter of further enquiry and consequently bail is confirmed in both applications on the same terms and conditions on which interim bail was granted. However, it is directed that the applicant shall fully cooperate with the police in the investigation and correspondingly he shall not be harassed or otherwise maltreated by the police during the course of such investigation. Order accordingly. N.H.Q./R‑87/K Pre‑arrest bail granted.