1989 PLP 4197 (MLD)

According to the F.I.R. on 15-3-1989 at about 9.45 p.m. complainant Fazal Wudood and P.W. Azizur Rehman with Abdul Wudood and Fazal Qadeer were proceeding towards house of applicant Mumtaz in Illahi Colony Orangi Town, Karachi, where Mumtaz had summoned the complainant and P.W. Azizur Rehman. Mumtaz accompanied by his son Alif Khan and his servant met the complainant party outside his house and fired at them with a kalashnikov. The shots hit P.W. Azizur Rehman and one Zardar Khan P.W. Azizur Rehman received injuries over his chest and stomach and right arm. Qazi Mumtaz was joined by Alif Khan, and his servant, in saying that such firing was sufficient for Wing the complainant party. The incident was witnessed by Fazal Wudood, Azizur Rehman, Abdul Wudood, Fazal Qadeer, Amirzadah, Afzal Khan and Awar Khan and others. Motive for the offence was that one month prior to the incident, Mumtaz had kept a lady in his house and this was resented by the complainant who repeatedly told Mumtaz to turn out the lady from his house as she was a vagabond. Mumtaz was annoyed over this. Hence he called for the complainant and P.W. Azizur Rehman at his house, for causing them injuries. such F.LR. was lodged by complainant Fazal Wudood. Prior to this the petitioner had moved the Court of Session, where his application for anticipatory bail was rejected under an order dated 12-4-1989. Under an order dated 18-4-1989, I had granted interim anticipatory bail to the petitioner, with notice to the Advocate-General Sind, for confirmation of the interim bail. The matter was fixed today for confirmation of the interim bail. I have heard Mr. Abdul Ghafoor Mangi, Assistant Advocate-General for tile State and the applicant in person. The counsel for the applicant was called absent from morning till 12-10 P.M. Learned Assistant Advocate-General argued that there was ocular evidence of seven witnesses against the applicant, who had played a pivotal role in causing injuries to Azizur Rehman and Zardar Khan. Azizur Rehman was said to have been caused injuries on vital parts of his body. It was further argued that there was sufficient evidence on the point of motive. That the F.I.R. of counter ?case was highly belated. Learned A.A.G. lastly argues on the authority of Murad Khan's case reported in P L D .1983 SC 82 that the applicant in his application had not alleged mala fides against police. Perusal of the application for bail shows that the applicant has nowhere alleged mala fides, except in ground No.3 where he stated as follows: "That the applicant was not present at Karachi on the day of the incident and he has bccn falsely named in the FIR on account of the influence of the complainant party and mala fides of the Police who have come under their influence." It is to be seen if the allegations made in the ground No. 3 meet the requirement of the law governing grant of anticipatory bail. Grant of bail before arrest is not the rule in a cognizable offence and is to be allowed only if it can be shown that the petitioner apprehends arrest due to some ulterior motives on the part of the Authorities or other influential persons, as observed by the Supreme Court of Pakistan in case of Mohammad Safdar and others v. State reported in 19831 1CMR

645. It is only in extraordinary circumstances, that a person can be admitted to bail before arrest in a cognizable offence, as further observed. In the Case of Murad Khan v. Fazal Subhan and others (PLD 1983 SC 8) It was Observed that the condition of arrest being for ulterior motive, for example that of humiliation and unjustified harassment was a necessary condition for pre-arrest hail. In the case of Zainul Hassan v. State reported in PLD 1984 SC 192 it was observed that 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 and the most essential of them all being that the intended arrest would be tainted with mala fides which must be specifically stated. In the light of the case law discussed above, the allegation of mala tides falls short of the required condition for grant of pre-arrest bail. Had the police been interested in arresting the applicant, they would not have given him a long rope to remain at large for so long a period. In the case of Sadiq Ali v. State reported in PLD 1966 it was cautioned by the Supreme Court of Pakistan that indiscriminate grant of bail merely on the request of a person, who appears in the Court and thereby surrenders himself to that Court, without the other conditions for such bail being satisfied, would amount to an act of judicial extravagance which cannot be countenanced: Medical evidence in the case shows that Azizur Rehman received a many as four firearm wounds. Three of such wounds were on different regions o the chest, which is vital part of a human body. Location of said injuries shows that the assailant intended to commit murder of the injured. Zardad received a firearm wound at his left forearm, which is not a vital part of body. Use o Kalashnikov, in causing said injuries, shows that the assailant intended to commit murder of Azizur Rehman. In the case of Mukhtiar Ali v. State reported in 1985 PCr LJ 2325, a learned Single Judge of this Court took the view that if an accused had prima facie a motive and planning for murder of a person, he could not be released on bail merely because the bullet which he fired did not prove fatal. It was observed that it was not marksmanship of the accused, but the intention that he carried in his mind at the time of committing an offence, for which he should be accountable. Filing of F.I.R. No. 125 of .1989 (termed as counter-case) by one Majeed after three days is not of consequence because in that case admittedly no injury was caused to Majid Khan, or to Alif Khan or to Farman Ali. Zardar Khan received an injury at hands of applicant as per F.I.R. No. 119 of 1989. Late filing of FIR No. 125 of 1989 reduced its value to zero. There is plea of alibi taken up by the applicant but it is not substantiated. In the case of Iqbalur Rehman v. State (PLD 1974 SC 83) the plea of the alibi put forward by the accused was supported by several residents of the locality, but the Supreme Court of Pakistan observed that such plea would have to be examined at the proper time by the trial Court and that it could not be said on the basis of such plea that there were no reasonable grounds for believing the accused to be guilty of the offence punishable with death or imprisonment for life. As result of above discussion, I hold that this application for anticipatory bail is not maintainable in law as well as on facts and the same is hereby dismissed. Interim bail granted to the petitioner on 18-4-1989 stands cancelled. Orangi Town Police to be informed. M.Y.H./M-829/K Petition dismissed.