1981 PLP 1098 (SCMR)

Ch. Rafiq Ahmad Bajwa, Advocate Supreme Court for Respondent No.

2. Date of hearing : 7th January, 1981. SHAFI-UR-REHMAN, J.-The petitioners seek leave to appeal against the judgment of the Lahore High Court dated 23-12-1980 whereby the order confirming their bail before arrest in a case under sections 302/ 149 and I48 P. P. C. was set aside and the petitioners were ordered to be sent to prison.

2. At 12-40 midnight of the night of 28/29-4-80 petitioner No. I who is a Civil Judge reported to the Police at his residence that while he was sitting in his drawing room, located apparently on the first floor, with petitioner No. 4 some one intruded in the bedroom on the ground floor. The intruder was caught hold of with the help of other petitioners and in the struggle the intruder received injuries.

3. Another written report was submitted to the police by Masha Allah Khan at 5-30 p.m. on 29-4-80 informing that Badar-ud-Duja, his brother had been invited by petitioner No. 1 - on phone to pass the evening with him at his House. Badar bad left saying he would return late in the night and none should wait for him. At the breakfast table next morning he was found absent and soon message was received that he was lying injured in Mayo hospital. During the brief spell of consciousness at the hospital Badar told him that petitioners and others had beaten him. At 2 p.m. the same day he expired.

4. The petitioners were admitted to, Interim bail before arrest which was confirmed about five months after on 10-9-80. On a petition by the complainant in the second report the learned Judge in the High Court cancelled their bail before arrest on the ground that it was not a fit cane for ball before arrest.

5. The learned counsel for the petitioners urged that the report lodged by petitioner No. I was prior in time, that the plea of self-defence was prima facie made out and that the petitioner No. I in any case was no assigned any active role, none of the injuries was individually fatal and the investigation was complete and over.

6. The law on the subject of hail before arrest admits of no doubt. As held by this Court in Ali Muhammad v. Yamin and another (1981 S C M R 1139) "In order to justify the grant of such bill, the petitioner must show that he apprehends his arrest on account of ulterior motive" or in Ghulam Haider v. Karim Bux (P L D 1963 S C 63) that the Supreme Court does not interfere the circumstances are altogether of an exceptional character, so that the refusal might entail the risk of a grave illegality or clear abuse of process or some gross act of injustice". Evidently, the petitioners' case does not, on any of these conditions qualifies for interference by, this Court at this stage. Leave to appeal, is! therefore, refused. Leave refused.