Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against the judgment dated 12.11.2007 whereby bail before arrest granted to the petitioner by the Additional Sessions Judge Thatha, vide order dated 23.12.2006 was cancelled.
2. Facts of the case in brief are that on 7.10.2006, report was lodged by one Jameel Ahmad Pirzada with Police Station, Makly, wherein it was alleged that Petitioners No, 1 & 2 had committed fraud with the complainant party by issuing false cheques, hence a civil suit was filed by the complainant in which Salahuddin son of Khaliq Dino Dal was also cited as a witness. The accused persons were, however, pressurizing the complainant party for withdrawal of the said case. On the day of occurrence complainant along with afore named witness left his house on motorcycle to attend the Court. On their way, they also took with them one Fayyaz Ahmad who had asked them to drop him at Thatta. At about 7.45 A.M., near Palari Petrol Pump, they were intercepted by Alam Chanel, Ashok Kumar, Bhawan and another person who were riding motorcycles. In the meantime, a Suzuki carry van of white colour too, reached at the spot wherefrom three persons armed with laties alightened. Alam Chand started abusing the complainant and asked his sons not to leave the complainant party and kill them, whereupon the petitioners and others started beating the complainant and his son with fists, kicks and laties. They raised alarm whereupon two persons, namely, Jabar and Muhammad were also attracted. Complainant saw that Salahuddin Jakhro fell down on the ground and became unconscious. He was removed to emergency ward of the Civil Hospital, Makly, where he was pronounced dead.
On the stated allegations formal FIR Bearing No, 65 dated 7.10.2006 was registered against the accused persons under Sections 302, 114, 147, 148, 149, 504, 337/A(i), 341, 337F(i) PPC. Resultantly, the petitioners approached the Sessions Judge for grant of pre-arrest bail which was allowed on 7.11.2006 by the Second Additional Sessions Judge and was later on confirmed by the 1st Additional Sessions Judge, Thatta, vide order dated, 23.12.2006. Against the said order complainant filed Cr.Misc. No,116 of 2007 for cancellation of bail before the High Court of Sindh at Karachi, which was allowed and the bail granted to the petitioners was cancelled vide the impugned judgment, hence this petition.
3. It is contended by the learned counsel for the petitioner that since as per initial as well as final postmortem reports dated 7.10.2006 and 3.1.2007, only two abrasions on the right and left knees of the deceased were found which as per report could not have, in the ordinary course of nature, cause death, he was also suffering from liver cirrhosis therefore, the petitioners were not liable for the offence of murder and their arrest on that count was unjustified, illegal and malafide because it was an admitted fact that there was previous hostility between the parties. He maintained that, in the circumstances, the impugned judgment was not sustainable because firstly, the false implication of the petitioners on account of enmity could not have been ruled out and secondly, if the allegation contained in the FIR in its entirety was believed, even then no non-bailable offence muchless the offence of murder was made out against the petitioners.
4. Mr. M. Qasim Khan Mirjat, learned AAG Sindh, Karachi, on the other hand while controverting the contentions raised by learned counsel for the petitioners submitted that since it was proved on record that the deceased was beaten by the accused persons including the petitioners and it was opined by the doctor, that death had occurred due to vaso-vagal shock as a result of testicular trama caused by hard and blunt substance, therefore the High Court was justified in canceling the bail allowed to the petitioners by the Additional Sessions Judge. He however, felt great difficulty in answering the question as to how the deceased suffered testicular trama? whether it was on account of any blow allegedly caused by any of the accused persons or it was due to falling of the deceased on the ground. He admitted that as per record the petitioners, at the time of occurrence, were empty handed.
5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused record of the case, minutely with their assistance. Admittedly, the petitioners at the time of occurrence were empty handed. The deceased was also suffering from liver cirrhosis. The final postmortem report dated 3.1.2007 is explicit in this regard. In the final postmortem report it has been categorically mentioned that the injuries shown in Column No, 13 & 14 (i,e, abrasions on the knees) of the initial postmortem report, were not sufficient to cause death in the ordinary course of nature and that the death occurred due to "vaso-vagal shock as a result of testicular trama caused by hard and blunt weapon". In the instant case six persons have been nominated by the complainant, out of which, names of three have not been mentioned in the F.I.R. even. Specific roles to the accused persons have also not been assigned. It is also not clear as to who, out of all the six accused persons, was responsible to cause injuries on the person of the deceased. Further, the possibility that the injuries, particularly the abrasions on both the knees, might have sustained by the deceased at the time of falling on the ground, can not be ruled out.
6.It would be pertinent to mention here that law with regard to exercise of jurisdiction for grant or otherwise of the pre-arrest bail is well settled. Pre-arrest bail may be granted when a case is based on enmity, malafide, registered for ulterior motive, or where no offence is shown to B have been committed on the basis of the record because the object is to protect the innocent persons from humiliation, harassm ent and disrespect. This view receives support from the cases: (i) Ch. Waris Ali v. The State (2007 SCM R 1607), (ii) Lal Muhammad Kalhoro & others v. The. State (2007 SCM R 843),
(iii) Masood Ahmed alias Muhammad Masood & another v. The State (2006 SCM R 933), (iv) Syed Muhammad Firdaus & others v. The State (2005 SCM R 784), (v) Rais Wazir Ahmad v. The State (2004 SCM R 1167), (vi) Mst. Qudrat Bibi v. Muhammad Iqbal & another (2003 SCM R 68), (vii) Malik Zafar Abbas v. Agha Raza Abbas Qazilbash & another (PLD 2002 SC 529), (viii) Murad Khan v. Fazal- e-Subhan and another (PLD 1983 SC 82).
7. Upshot of the above discussion is that, in our view, petitioners have made out a case for grant of bail, hence the impugned order dated 12.11.2007 passed by the High Court of Sindh, Karachi, is set aside, the petition is converted into appeal and is allowed. Interim bail granted to the petitioners by this Court vide order dated 13.12.2007 is hereby confirmed.
8. Needless to point out that observations made in this order are tentative in nature and shall not prejudice the case of either of the parties before the trial or the appellate Court. The prosecution shall be at liberty to move for cancellation of bail in case some evidence, connecting the petitioners with murder on any other offence is collected and produced by the prosecution before the Court or is led at the trial.