1989 P Cr (PLP)

5. I have heard Mr. Aftab Ahmad Akhund, learned counsel for applicants and Mr. Abdul Hafeez Lakho, learned A. G. on behalf of State. I have also heard Mr. I.A. Hashmi, learned counsel for complainant Syed Abid Ali. Mr. Akhund referred to several points, but eventually confined his arguments in the main to three contentions, viz.‑‑ (i) That the F.I.R. lodged by applicant Dr. Niaz Amer is first in point of time and is fully corroborated by the F.I.R. lodged by Riazuddin Shah S.I.P. (Crime No. 14 of 1989), and the arrest of Muhammad Wasil with mouser from the bath room of Asim Clinic. (ii) That the fact that deceased Faisal Mashhadi received bullet injuries during cross‑firing between the culprits and the police is established by the firing of mob of persons at the police station (Crime No. 15 of 1989) and killing of H.C. Bakhtawar (Crime No. 13 of 1989). (iii) That the intended arrest of the applicants is mala fide both on the part of police, as well as the complainant party; arid it is actuated by oblique motives.

6. The fact that deceased Faisal Mashhadi died in Asim Clinic is not in controversy. According to the F.I.R. lodged by Syed Abid Rizvi (Crime No. 16 of 1989). deceased Faisal Mashhadi was called by applicant Dr. Niaz Amer and then he was brutally murdered in presence of Muzaffar Ali and Muhammad Aslam by both the applicants. The case developed by Dr. Niaz Amer in (Crime No. 12 of 1989), is to the effect that deceased Faisal Mashhadi armed with kalashnikov alongwith five others, four armed with kalashnikoves and one with mouser had attacked him in his clinic, where there was exchange of firing between police constables, who had brought one prisoner who was ill, and the culprits, in which Faisal Mashhadi, who was wearing a mask died and one other person by name Muhammad Wasil, who was armed with a mouser, was apprehended and the remaining four culprits, who too were armed with kalashnikoves, decamped. The Mashirnama of scene of occurrence (Wardat) prepared by Riazuddin Shah S.I.P. immediately after the incident, however, shows hat applicant Dr. Niaz Amer was standing armed with kalashnikov when police party reached to Asim Clinic. The inventory prepared by Riazuddin Shah S.I.P. further shows that only three empties were secured from the spot, although there was allegation of indiscriminate firing by the culprits. Admittedly none from the members of staff I and patients, who were present in the clinic were injured. Surprisingly the culprit, who subsequently gave his name as Muhammad Wasil and who was armed with a I mouser, was pushed into the bath room by Lady Doctor Shamim Ansari, wife of applicant Dr. Niaz Amer with the help of other without any resistance. The statements of P.C. Arshad, P.C. Akbar Hussain and P.C. Muhammad Khan recorded on 6‑2‑1989, make a clear mention that there was no firing by the police if party present in the clinic with the patient. Therefore, it does not require much of I calculation how to multiply 2 by 2.

7. The purpose of an application for bail before arrest is to avoid the humiliation of being arrested by the police. It was so held in Muhammad Aslam v. The State reported in P L D 1974 Lah. 493 in the following words:‑ "The very purpose of an application for bail before arrest is to avoid humiliation of being arrested by the police. Grant of bail before arrest is rare, but Courts do grant bail before arrest where it is fell that the petitioner has probably, been falsely involved in a case and is likely to suffer irreparable injury to his dignity, respect and reputation."

8. The pre‑arrest bail is granted mainly in order to relieve a person from being disgraced by trumped up charges. It will, however, be highly improper to extend this extraordinary concession to accused involved in a murder, where there is prima facie evidence against him, thereby depriving the Investigating Agency of all reasonable opportunity of finding out the truth. The cases report as Murat Khan v. Fazal‑e‑Subhan and another P L D 1983 SC 82, Zia‑ul‑E‑sin v. The State P L D 1984 SC 192, Jamaluddin v. The State 1985 S C M R 1949, Kaila and 3 others v. The State 1986 P Cr. L J 90, Fateh Muhammad alias Fatehuddin v. The State 1985 P Cr. L J 87, and Abbas anti 2 others v. The State 1988 P Cr. L J 248 are leading cases on this subject. In Zia‑ul‑Hassan's case the principles governing the exercise of discretion for the grant of pre‑arrest bail anti `bail after arrest' were distinguished in the following words:-- 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, the most essential of them all being that the intended arrest would be tainted with mala fides which must be specifically stated. It is ire this context also that the other condition of irreparable loss is to be viewed."

9. Mr. Aftab Ahmad Akhund, learned counsel for the applicants, with whom Mr. Abdul Harz Lakho, learned A.G. has agreed, has contended that there are two versions with regard to the same incident and it is yet to be determined at the time of trial, as to which one is correct; till such time the applicants are entitled to bail. This argument, however, is effective I answered by the Supreme Court of Pakistan in Muhammad Sadiq v. Sadiq and other, reported in P L D 1985 SC 182, wherein the scope and meaning of phrase `further inquiry' was examined and answered.

10. The applicants have alleged mala fides against the police and the complainant party. There is, however, nothing on record to even suggest that complainant Syed Abid Ali had any reason to rope the applicants falsely in this case. A close examination of all the F.I.Rs. registered on 5‑2‑1989, reveals that a D deliberate attempt was made on the part of S.H.O. Latifabad P.S. and hip subordinate officials to help Dr. Niaz Amer, which is evident from the following extracts of reports. In Crime No. 13 of 1989, Manzoor Hussain S.H.O., recorded, as under:‑ "The murder of this Head Constable has taken place in retaliation of Crime No. 12 of 1989 under section 148 ‑ 307/149, P.P.C." While recording the F.I.R., of Crime No. 14 of 1989, under section 13‑D of Arm‑‑ Ordinance, 7965, the entire story as unfolded by applicant Dr. Niar Amer in Crime No. 12 of 1989, was introduced, although there was no occasion for it. Likewise a deliberate attempt was made to oblige Dr. Niaz Amer while recording F.I.R. in Crime No. 15 of 1989, in the following words:‑ "This firing has been made by the people of Latifabad in retaliation to the incident which happened 2 ‑3 hours before in Asim Clinic Siddique Plaza where six masked men duly armed had attacked Asim Clinic and had fired at policemen also who had taken an accused for first aid, and there one Faisal Mashhadi was hit by bullet and had died." It may be recalled that all the police officials who were examined in Crime No. 12 of 1989, have disowned this position. In this view of the matter the allegation of mala fides against the police has got no foundation.

11. There are reasonable grounds to believe that both the applicants are involved in this case. The bail application has got no merits and is dismissed accordingly. SA./N‑154/K Bail refused.