1990 PLP 146 (MLD)

Mushtaq Ahmad Farazi for the State. Muhammad Hussain Inspector Police is present. The pre‑arrest bail was granted to Sardar Muhammad respondent, who happens to be an Irrigation Patwari, on 18‑9‑1989 by the learned Additional Sessions Judge, Rahimyar Khan. A petition under section 497(5) of the Cr.P.C. has been moved for the cancellation of the bail granted to the respondent on the ground that the mala fide on the part of the complainant or the police has not been proved and, in the circumstances of the case, the pre‑arrest bail could not be granted.

2. Sardar Ahmad Khan, Advocate, learned counsel for the petitioner has, however, submitted that it could be a case of post‑arrest bail and not of pre‑arrest, bail.

3. In this case, Akbar, Rafiq, Abdul Haq, Muhammad Tufail, Riaz, Nazir Ahmad and two sons of Allah Ditta, Headman, were specifically named in the F.I.R., who had caused injuries with their respective weapons and five of them have been arrested. They had attacked with Kalashnikov, rifles and guns when their victims were seated in a passenger bus. The motive for the commission of this offence is that Muhammad Nawaz, the brother of Muhammad Rafiq, was murdered and, in order to slake the instinct of revenge, the aforesaid persons took the lives of five persons from the complainant party.

4. In the F.I.R. the allegation against Sardar Muhammad respondent is that the accused stayed for a night in his house. There is no allegation of criminal conspiracy in the F.I.R. nor is there any mention of the names of Nazir and Rafiq P.Ws., who have made a statement before the Investigating Officer that Sardar Muhammad had distributed fire‑arms to the actual accused and Riaz one of the accused, had returned the rifle to Sardar Muhammad or his nephew. The mala fide of the police or of the complainant is to be judged from the circumstances of the case. The copy of the F.I.R. No.249, dated 6‑10‑1988 has been shown to me, which evinces that Nazir and Rafiq who are P.Ws. against Sardar Muhammad, were involved in a case under sections 307/148 and 149 of the P.P.C. in which Sardar Muhammad was an eye‑whiles. Secondly, Nazir and Rafiq P.Ws. live in another village and are not the residents of Chak No.42/B where the respondent lives. Thirdly, the respondent was not expected to involve himself in a murder case and distribute rifles in the presence of Nazir and Rafiq, who are inimically disposed towards him. Finally, no such allegation exists in the inquest report against Sardar Muhammad.

5. The learned counsel for the petitioner has submitted that in the absence of mala fides or ulterior motive, the pre‑arrest bail could not be granted to Sardar Muhammad, who had hatched a criminal conspiracy against the complainant party.

6. As stated supra, there should have been an allegation against Sardar Muhammad regarding the criminal conspiracy in the F.I.R. Nazir and Rafiq P.Ws. cannot tentatively be believed that they were present when the respondent conspired against the complainant party and a number of persons were murdered in this case. The mala fide of the a Complainant and the police is evident from the fact that there was no allegation in the F.I.R. about any criminal conspiracy entertained by the respondent. The statements of the witnesses, who are enemies of the respondent and belong to, another village have been recorded. The respondent has placed on the file a number of applications given against the police of Kot Samaba for the transfer of the investigation to some other agency. The police appears to be against him respondent on that account. The respondent has stated that he joined the investigation of this case and there is no allegation against him that he did not join the investigation of this case.

7. The mala rides of the police and the complainant is, prima facie, evident in this case: The respondent has also taken the plea of alibi, which can be proved after the examination of witnesses. It is not a fit case for the cancellation of bail and I, therefore, reject this petitioner. The respondent is, however, directed to maintain the privilege granted to him. N.H.Q./M‑1660/L Petition rejected.