1. ' The applicants are seeking pre-arrest bail in Crime No,7 of 2004 in an offence punishable under section 382, P.P.C. Registered at Police Station Dadu.
2. ' The applicants filed an application being Cr. B.A. No,76 of 2004 in the Court of Session which was placed before learned 1st Additional Sessions Judge, Dadu. The said Court granted interim pre- arrest bail to the applicants/accused vide order, dated 18-2-2004. The above application came for hearing for confirmation or otherwise on 25-5-2004. After hearing detailed arguments of learned counsel for the applicants and on behalf of State, their bail 'application was dismissed vide order, dated 25-5-2004 by learned 1st Additional Sessions Judge, Dadu and the interim pre-arrest bail order was recalled. The applicants have preferred application before this Court for seeking pre- arrest bail in the above-mentioned crime. On 1-6-2004, this Court granted interim pre-arrest bail to the applicants without touching the merits of the case.
3. ' Mr. Abdul Rasool Abbasi learned counsel for the applicants contended that the applicants/accused are innocent and the alleged offence has not been committed by them and they have been implicated falsely in this case by the complainant due to enmity and on account of fight of boys and the case was lodged at the police station. There is a delay of about 21, hours and no specific explanation has been furnished while recording the F.I.R. Whereas the police station is at the distance of some kilometers from the place of offence. The applicants/ accused are members of one family. The local police is bent upon to arrest the applicants/accused and they have raided the house of applicants after recording the F.I.R. And after dismissal of their bail application by learned 1st Additional Sessions Judge, the applicant/accused have been implicated with some ulterior motives.
4. ' Mr. Abbasi learned counsel in support of his proposition has relied upon the case of Maz Wali v.
5. The State (1977 SCMR 469) and the case of Haji Ghani v. The State (PLD 1988 Lah. 507).
6. ' Mr. Muhammad Azeem Panhwar learned State counsel has opposed this application and submits that there is no mala fide shown by the applicants for seeking pre-arrest bail and has relied upon the cases reported in 2003 SCMR 68, 1996 SCMR 71 and 1996 SCMR 74.
7. ' I have heard the arguments of learned counsel for the respective parties, examined the material on record and the case-law cited at the bar.
8. ' According to the F.I.R. The applicants/accused Din Muhammad, Dhani Bux were armed with guns, whereas Foto and Gul Bahar were having pistols, Shah Nawaz and Moula holding hatchets wens to the land of complainant and on the show of weapons took cotton six maunds lying at the place of incident. The complainant party due to fear of weapons remained silent and the applicants/accused forcibly taken away the cotton ponds and went away. The F.I.R. Of the incident was recorded on 22-1-2004 at 1600 hours at the complaint of Zulfiqar Ali. The names of applicants/ accused are nominated in the F.I.R. And all the accused named in the F.I.R. Were shown armed with guns, pistols and hatchets. The applicants/accused while seeking pre-arrest bail in the Court of Session, no material was placed to show mala fide intention of the complainant party or police party to involve them falsely.
9. ' In view of the decision of Honourable apex Court reported in the case of Murad Khan v. Fazal-e- Subhan and another (PLD 1983 SC 82) the Honourable apex Court as laid down the conditions for grant of pre-arrest bail. In case of Ch. Zahur Illahi v. The State. The Crown v. Khushi Muhammad and Sadiq Ali v. The State were taken into consideration for grant of pre-arrest bail. There is another precedent reported in case of Hidayat Ullah Khan v. The Crown. In case of Muhammad Shafiq and another v. The State, Muhammad Azam and another v. The State and Sardar Muhammad and others v. The State although the ground of mala fide on the part of complainant in the case was asserted the Honourable apex Court after examining the allegation of the nature of injuries involved in the case that the High Court was right to see that the law should not be taken its normal course and there was no justification for allowing pre-arrest bail. Learned 1st Additional Sessions Judge, Dadu while rejecting the bail application has observed as under:-- ' After hearing the learned counsel for the applicants/accused, learned D.D.A. For the State and have gone through the material available on record, it appears that applicant/ accused are involved in theft case which comes within the prohibitory clause of section 497(1), Cr.P.C. The names of applicants/accused nominated in the F.I.R. No mala fide intention of the complainant/ police as established by the applicants/accused therefore, they are not entitled for pre-arrest bail".
10. ' Even after the rejection of bail, the applicants/accused have not brought any material before this Court to justify that there are ulterior motives on behalf of complainant party. Learned counsel for the applicants has taken advantage of the F.I.R. That there was some fight but the copy of F.I.R. And the names of the accused party and the witnesses are not before this Court to presume that a case was registered against the applicants/accused. It is not necessary to examine the merits of the case for grant of bail because it might prejudice either party. It is only to be considered that there are mala fides or ulterior motives to involve the applicants/accused in the F.I.R. As per conditions enumerated in the case of Murad Khan v. Fazal-e-Subhan it is observed that while seeking anticipatory bail the petitioner must show that he apprehends his arrest on account of ulterior motives. The principle for grant of anticipatory bail is based on other proposition of law, whereas bail after arrest are based on other principle of law.
11. ' Mr. Abbasi learned counsel for the applicants while arguing the case has pointed out that after due investigation the challan of the case has been filed in the Court having jurisdiction and the applicants/accused were on bail granted by the Court of learned 1st Additional Sessions Judge. It is obvious that the applicants/ accused have not placed any document to show that they have been involved B malafidely with ulterior motives for the commission of offence. It is alleged in the F.I.R.
12. That the applicants/accused committed the offence at about 5-00 p.m. When the complainant who happens to be a primary teacher got registered the F.I.R. As they had gone for picking the cotton ponds and on show of weapons they remained silent and ultimately the accused party took six maunds of cotton ponds from the land of complainant.
13. ' The interim bail was granted to the applicants/accused without touching the merits of the case and today the whole merits and demerits have been argued by, learned counsel for the respective parties.
14. ' In view of the foregoing reasons, the interim bail granted by this Court vide order, dated 1-6-2004 is recalled. The applicants/accused may surrender before the Trial Court and press their bail application after arrest.
15. ' Cr. B.A. No, 349 of 2004 is dismissed.
16. Interim .