' Haji Ghulam Muhammad, the petitioner, by filing the instant petition seeks his pre-arrest bail in case F.I.R. No,276 of 2004, dated 21-6-2004, registered at Police Station Chung Lahore for offences under sections 302, 365 and 190, P.P.C.
2. The allegation in the F.I.R. Registered at the instance of Muhammad Mushtaq son of Kaley Khan was that on 21-6-2004, his son Muhammad Ashfaq, aged 20 years, who was employed in GLASS Factory, was kidnapped by seven/eight unknown persons; they took him to the Dera of the petitioner, in village Bhobatian and subjected him to violence, who on receipt of injuries breathed his last; Muhammad Riaz son of Khan Muhammad informed the complainant about the incident on telephone. Whereupon he along with Muhammad Hanif son of Muhammad Paras reached village Bhobatian.
' The motive as alleged by the complainant was that his son had friendship and social intercourse with Muhammad Ashraf, Khalid and others, who were inimical towards Ghulam Muhammad and for this reason Ghulam Muhammad had got him abducted and killed'.
3. The petitioner's plea for pre-arrest bail was turned down by the learned Additional Sessions Judge, Lahore on 4-9-2004. Hence, the instant petition.
4. The learned counsel for the petitioner in support of his plea for pre-arrest bail argued that the petitioner is involved on account of mala fides, ulterior motive and previous enmity with Khalil and others; that time of occurrence does not find mention in the F.I.R., which renders the case of the prosecution rather doubtful; that the complainant is not the eye-witness and the prosecution case is based upon presumptions and hearsay; that it is a case of diverse versions inasmuch as the complainant had taken a totally different stand in the supplementary statement from the one which he had taken in the F.I.R.'; that there is established enmity between the parties and the petitioner had lodged F.I.R. No, 68 of 2000 at Police Station Chung for the murder of his son Muhammad Latif, whereas he had lodged F.I.R. No,303 of 2002 at the same Police Station for the murder of his brother Sardar against the complainant party; that in fact the deceased Ashfaq along with his two co-accused had launched an attack at the petitioner's house, when he was away attending a wedding and on his return one of the attackers, Ashfaq deceased had been apprehended at the spot and handed over to the police, whereas two of his accomplices had managed to escape; that no direct or indirect evidence regarding culpability of the petitioner is available on the record and none of the prosecution witnesses belongs to the place of occurrence.
He finally argued that the petitioner was an elderly and a sick and infirm person within the meanings of first proviso to subsection (1) section 497, Cr.P.C., inasmuch as he was a confirmed heart patient and was under treatment of a Cardiologist. In support of his submissions, the learned counsel has relied upon cases, Waris Muhammad v. Haji Ahmad Yar and another (1976 SCM R 182), Sadiq Ali Shah v. Sardar Khalid Umar and others (1982 SCM R 975), Syed Amanullah Shah v. The State and another (PLD 1996 SC 241), Khalid Javed and another v. The State (2003 SCM R 1419), Firdous Paul v. The State (2004 SCM R 15) and Atta Ullah v. The State (2004 PCr.LJ 309).
5. On the 9ther hand, the learned counsel for the complainant submitted that the arguments of the learned counsel for the petitioner call for deeper appreciation of the material available on the record; that the deceased had been recovered from the Dera of the petitioner in seriously injured condition, wherefrorn he had been removed to Chung Dispensary and from there to Jinnah Hospital, Lahore where he succumbed to his injuries; that the deceased had been subjected to extreme cruelty and the doctor who conducted this postmortem examination observed as many as eighteen injuries on his person; that the statements of the prosecution witnesses, namely, Jaffar Ali and Muhammad Ashraf are available on the record, who had seen the deceased being taken away by the petitioner; that contrary to the claim of the learned counsel for the petitioner, Usman P.W. Is an independent witness having no relationship with the complainant party; that the petitioner has been found to be guilty by the Superintendent of Police, who conducted the Investigation; that there is strong motive against the petitioner for the murder of the deceased. He finally argued that the conditions for the grant of pre-arrest bail being entirely different from those, which weigh with a Court for grant of post-arrest bail, the petitioner is not entitled to the extraordinary concession of pre-arrest hail, especially when no mala fides had been urged against the police.
6. The learned counsel for the State while adopting the arguments addressed by the learned counsel for the complainant resisted this petition.
7. I have considered the arguments addressed by the learned counsel for the parties and have perused the record brought by Khushi Muhammad S.I.
8. One of the basic consideration in a pre-arrest bail application is mala fides on behalf of the complainant and the police. In the instant case the learned counsel for the petitioner has not been able to point out any mala fide on behalf of the police. Insofar as the complainant is concerned, it is admitted that both sides are involved in serious criminal cases. The deceased namely Muhammad Ashfaq, had sustained as many as 18 injuries on his person and from the post mortem report it transpires that he was dealt with by his attackers in a very cruel and brutal manner. In order to appreciate the arguments advanced in support of his plea for pre-arrest bail one has to undertake a deeper appreciation of the material available on the record. It is an established principle of law that while seized of a pre-arrest bail application this Court is to confine itself to the extent of tentative assessm ent of the material available on the record.
9. In view of the material available on the record against the petitioner, it cannot right way be said that he is not involved in the case. The case had been registered as far back as on 21-6-2004 and the petitioner has so far managed to elude the process of law. The Investigating Officer Rana Munawwar S.P. Has opined about the guilt of the petitioner and has also stated that he has got a strong motive to commit the offence. The statements of the prosecution witnesses under section 161, Cr.P.C. Also implicate the petitioner. The precedents relied upon by the learned counsel for the petitioner do not advance his case for pre-arrest bail. In the case of Waris Muhammad v. Haji Ahmad Yar and another (1976 SCM R 182) bail was granted to the petitioner by the Hon'ble Supreme Court because in the said case the complainant had named the petitioner 17 days after the occurrence although he remained associated in the investigation throughout. In the case of Sadiq Ali Shah v. Sardar Khalid Umar and others (1982 SCM R 975) pre-arrest bail was allowed to the petitioner as no part in the occurrence had been attributed to him and it was alleged that the murder had taken place at his instance. Even otherwise this was an application for cancellation of bail which had been allowed by the Lahore High Court, Lahore. In the case of Syed Amanullah Shah v. The State and another (PLD 1996 Supreme Court 241), bail had been allowed to the petitioner who was held to be not present at the time of occurrence and was alleged to have instigated the principal accused in the presence of the Prosecution Witnesses to eliminate the deceased one hour before the occurrence. The case of Khalid Javed and another v. The State (2003 SCM R 1419) was an appeal decided by the Hon'ble Supreme Court, which cannot be pressed into service while arguing a bail application. The case of Firdous Paul v. The State (2004 SCM R 15) is also distinguishable inasmuch as the petitioner in the said case suffered very severe diabetic complications and had also developed renal problems and according to the expert medical opinion he carried moderate risk of acute renal insufficiency if Coronary Artery Bypass Grafting was not done. In the case of Atta Ullah v. The State (2004 PCr.LJ 308) the petitioners had been allowed pre-arrest bail in the peculiar facts and circumstances of the case inasmuch as one of the petitioners namely Atta Ullah was the lodger of the F.I.R. Himself and later on he had been turned into an accused person. As already stated that the precedents cited by the learned counsel for the petitioner proceed on distinguishable fact and do not advance the case of the petitioner for the grant of pre-arrest bail. There is no merit in this petition which is accordingly dismissed.
10. However, before parting with this order, I would like to observe that the observations made hereinabove are tentative in nature and are not meant to influence the proceedings of the trial as also any application for post-arrest bail which may be moved by the, petitioner.