Petitioners seek bail before arrest in case F.I.R No. 412/05 dated 28.11.2005, registered under Sections 302/148/149 PPC, at Police Station Pirwala, District Multan.
2. Briefly the facts as narrated in the F.I.R lodged at the instance of Malik Abdullah are that the petitioners Muhammad Iqbal and Muhammad Shafi both armed with .12 bore gun, while Muhammad Rafique and Muhammad Nawaz petitioners armed with rifles, alongwith six other co- accused who were also armed with fire-arm weapons, launched an attack upon the complainant party and committed the murder of Ghulam Abbas by causing fire-arm injuries to him. The motive of the occurrence as alleged in the F.I.R was previous enmity between the parties.
3. During the pendency of the trial, the petitioners applied for pre-arrest bail which was refused by the learned Addl. Sessions Judge, Multan, which necessitated the filing of the present petition.
4. In support of this petition, learned counsel for the petitioners has submitted that during the investigation of the case, all the petitioners were found innocent and their names were placed in Column No. 2 and after receipt of the challan, the learned trial Court issued process against the petitioners, but in response to the non-bailable warrants, the petitioners could not appear and after coming to the knowledge of issuance of non-bailable warrants, they had surrendered themselves before the learned trial Court by way of filing application for pre-arrest bail; that as a matter of fact, there was no need to file said application and under Section 91 of Cr.P.C. learned trial Court was bound to release the petitioners on bail after requiring the petitioner to submit bail bounds and accepting the same. In this regard, he has placed reliance upon the case reported as "Saif-ur-Rehman Vs. The State" (2006 P.Cr.LJ. 1509).
5. Learned counsel for the State assisted by the learned counsel for the complainant has vehemently opposed this bail application by submitting that the petitioners are specifically named in the F.I.R and all of them are fully responsible for the death of Ghulam Abbas deceased as they had caused fire-arm injuries to him with their respective fire-arm weapons; that finding of the police is not binding upon the Courts. They add that it was a day time occurrence in which F.I.R was lodged very promptly. During the investigation, eye-witnesses have fully supported the prosecution case which is corroborated by the post-mortem report also. They further add that the petitioners remained absconders and it is settled law that fugitive from law loses some of their normal rights.
6. Heard. The perusal of the F.I.R shows that the same was lodged very promptly. The petitioners are specifically named in the F.I.R. All of them had allegedly fired upon Ghulam Abbas deceased and caused his death in a day time occurrence. During the investigation all the eye witnesses have supported the prosecution case. Though, the petitioners were found innocent by the police and their names were placed in Column No. 2, but the learned State counsel after perusal of the record, could not point out any solid material on the basis of which the petitioners were found innocent. It is established law that the opinion of police is not binding upon the Courts. Though, the same can be considered by the Courts while deciding the bail applications, but the same may render some help to the accused at bail stage, if same is found to be based upon sound material. The impugned order shows that the petitioners remained fugitive from law for considerable period and after adopting all the legal formalities, they were declared absconders. It is settled law that long abscondance of the accused can be used against the B accused as additional evidence and fugitive from law loses some of their normal rights. Reliance in this regard is placed upon Najeebul Vs. Khan, 1989 S.C.M.R 899 and Ibrahim Vs. .The State, 1985 S.C.M.R 383.
7. As far as the contention of the learned counsel for the petitioners that after being declared as innocent and placed in Column No. 2, the petitioners were not required to file application for pre- arrest bail and they were only required to submit surety bonds is concerned, I do not see eye to eye with him on this point. The provision of Section 91 Cr.P.C. were to be read in conjunction with the provision of Sections 496 and 497 Cr.P.C. and despite the fact that the petitioners had put in their appearance before the learned trial Court, the provisions of Sections 496 and 497 Cr.P.C. had not been rendered in-effective and as such, the petitioners were not entitled to automatic admission to bail. Reliance in this regard is placed upon Zia-ur-Rehman Sajid Vs. Muhammad Aslam and another, 2005 P.Cr.LJ. 1706 and Noor Nabi and three others Vs. The State, 2005 P.Cr.L.J. 505.
8. During the hearing of this petition, learned counsel for the petitioner could not point out any solid material on the basis of which it could be held that the petitioners had been named in the F.I.R due to the mala fides of the police or the complainant. In absence of such mala fides, pre-arrest bail cannot be granted to the petitioners. Reliance in this regard is placed upon Murad Khan Vs. Fazl-e- Subhan, PLD 1983 S.C. 82, Zia-ul-Hassan Vs. The State, PLD 1984 S.C. 192.
9. For all the reasons mentioned above, the petitioners are not found to be entitled to the extraordinary relief of pre-arrest bail, consequently, the petition in hand is dismissed. However, it is observed that findings given in this order are tentative in nature and same would not effect the trial.