2008 PLP 1565 (YLR)

Haji Akbar lodged F.I.R. at Sachal Police Station on 10th January, 2006, at 1900 hours, stating therein that he resides in village Muhammad Hassan Gabole, North Malir, Karachi, and deals in the business of sale and purchase of cattle, that on 30th December, 2006, while he was returning back from the cattle Mandi after selling the cattle and was going to his house and while he reached near the "Bundoo Khan Kabab Wala", one motor car of the Corolla make bearing Registration No.B-1724 crossed his vehicle and stopped in front of the same wherein five culprits were found sitting by him; they showed fire arms to the complainant and thereby made him to stop, out of them three culprits were allegedly armed with T.T. Pistols, and demanded from him to part with all the valuables in his possession and to give the same to the culprits. Complainant further alleged that he got frightened on seeing the culprits duly armed with fire arms; and the other three so armed took cash amount of Rs.2,37,000 along with his mobile phone set from his pocket. He identified the culprits on the head lights of the vehicle to be Wahid Bux, Akhtar and Khamiso; he further stated in the F.I.R. that he would identify remaining two whenever they would come before him. The said incident was allegedly witnessed by Waryam Gabole. The applicants Wahid Bux, Akhtar Hussain and Khasmiso (named in the F.I.R.).filed application under section 498, Cr.P.C. before the learned Sessions Judge Malir, which was heard by IInd Additional Sessions Court Malir, who vide order, dated 17th February, 2007, dismissed the same, with observations that the names of the applicant appear in the F.I.R. while the incident is said to have been witnessed by witness Waryam. The applicants have approached this Court for grant of bail before arrest to them: Heard learned counsel for the parties. As stated above, names of all the three applicants appear in the F.I.R. and according to the complainant they were clearly seen by him and identified on the head lights of the motor vehicle; further that cash amount of Rs.2,37,000 with a mobile phone set were robbed from his pocket by the applicants with two other culprits. Merely because civil litigation is pending before the competent Court of civil jurisdiction or that the suit has been decided by it, the same would be no ground to record a finding that the applicants are not involved in the alleged incident. On the contrary, it is a settled principle of law that the enmity is a double edged weapon which cuts both ways, and the investigation has yet to get completed to see whether, due to the said civil litigation in between the parties, the complainant could have possibly filed the said F.I.R. falsely or not. For the purpose of bail before arrest the applicants had to prove mala fide at the hands of the investigation police to say that on the basis of any such mala fides they are entitled to the 'grant of bail, but no mala fides have been alleged by the applicants' at the hands of the investigation police. At this premature stage of the case, when the investigation has not yet completed, the applicants do not appear to have made out any case for grant 'of bail before arrest and therefore, this bail application is hereby dismissed. Interim order of grant of bail, dated 24th February, 2007, stands recalled. H.B.T./W-3/K Bail refused.