1. ' DR. RANA MUHAMMAD SHAMIM, J.---The applicant has assailed the bail order dated 13th March, 2008 passed by learned 3rd Additional Sessions Judge, Khairpur, whereby the bail before arrest to the applicant was refused.
2. ' In brief the complainant Manzoor Ahmed Memon in the F.I.R. No, 91 of 2007 dated 30-6-2007 registered at Police Station Baberloi, under sections 302, 337H(2), 34, P.P.C., stated that he has old enmity with accused Saeed and others and the former used to restrain complainant's nephew Ehsanullah to accompany Manzoor Ahmed else he will be murdered. On the eventful day, at Isha prayer time, complainant along with his nephew Ehsanullah, Imran Ahmed and Mujeeb Rahman were on way to their house and when at about 8-30 p.m. Reached at the house of Haji Habibullah Memon, they noticed presence of accused Saeed Ahmed and Muhammad Ali alias Ayes with pistols, Fazalullah alias Munir (present applicant) with repeater. Applicant challenged the complainant party to stop and they would not be spared. In the meantime, accused Saeed Ahmed made straight fire hitting Ehsanullah who fell down while raising cries. Other accused also made aerial firing in order to create harassment. On fire shot reports and cries, other people also came there. Seeing them, accused ran away, Ehsanullah aged about 28 years had sustained fire-arm injuries at his head near ear and blood was oozing. He died at the spot. Consequently, above noted F.I.R. Was lodged.
3. ' Learned advocate for the applicant contended that the applicant has falsely been implicated for ulterior motives; that the learned trial Judge has completely failed to consider material available on record and the supplementary report wherein applicant was declared innocent and his name was kept in column No,2; that there is inconsistency between the contents of F.I.R. And statements of P.Ws recorded under S.161 Cr.P.C. As well as medical evidence; that the P.Ws, who claimed to be eyewitnesses have been examined after delay of two days as such credibility of eyewitnesses namely Imran Ahmed, real brother of deceased and Mujeeb Rehman, close relative of deceased is not free from doubt and false implication of the applicant cannot be ruled-out; that the allegation against the applicant is of aerial firing only. The F.I.R. Was lodged after delay of 11 hours; that the story as unfolded in the F.I.R. Does not inspire confidence and appears to be tailor-made/managed by the complainant. Lastly, he argued that the applicant is patient of Disc Herniation and had surgery in the year 2004 and since then he complains for pain. He produced medical certificate and report of special medical board arranged at his own; that the applicant is responsible Bank Officer, absolutely innocent and has not committed any offence as alleged. He prays for pre-arrest bail to save his honour and dignity. In support of his contentions, he relied upon cases of Sukhio v.
4. The State 2002 YLR 3663, Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66, Muhammad Sadiq and another v. The State 1999 SCMR 1654, Abdul Rehman v. Javed and 2 others 2002 SCMR 1415, Akhtar Hussain v. The State 1996 P.Cr.L.J 1816, Haji Maa Din and another v. The State and another 1998 SCMR 1528, Qasim v. The State 2001 YLR 214 and Muhammad Afzal v. The State 2005 YLR 1812.
5. ' Learned Asstt. A.G. Has opposed the grant of bail application on the ground that the applicant is nominated in F.I.R. And specific role was assigned to him, that the applicant challenged the complainant party and directed them to stop and would not be spared. The applicant and co- accused caught hold of Ahsanullah (deceased) from arms and other co-accused Muhammad Saeed directly fired at deceased Ehsanullah. P. Ws examined by the Investigating Officer under S.161, Cr.P.C. Have fully implicated the applicant and supported the complainant version. Applicant prima facie at this stage appears to be connected with the crime. No any serious enmity is alleged against the complainant to falsely implicate him; that the enmity was alleged against Manzoor Ahmed, who is the brother of the applicant but the complainant has not implicated said Manzoor Ahmed. Hence, submissions advanced by learned advocate for the applicant got no substance; that the Investigating Officer submitted report under S.173, Cr.P.C, where the applicant was nominated with specific role and on the basis of evidence so collected opined that the applicant is actual culprit. He further submits that it is a settled law that at the time of deciding bail application, deeper appreciation of evidence is not required. Pre-requisite conditions of pre-arrest bail are lacking. Hence, learned trial Court's order requires no interference and the applicant is not entitled for the grant of bail. He also submits that the applicant misused the concession of interim bail as in spite of notices issued by the Investigating Officer he has not appeared and joined the investigation. He relied upon cases of Ziaul-Hassan v. The State PLD 1984 SC 192,. Muhammad Azam v. The State 1996 SCMR 71, Muhammad Sarwar v. The State 1972 SCMR 57, Muhammad Yaqub v.
6. Muhammad Ramzan and another PLD 1987 Lahore 99, Abdul Ghani v. The State 1996 SCMR 555, and Muhammad Sabtain Shah v. The State 1978 SCMR 403.
7. ' I have heard learned counsel for the applicant, learned Asstt. A.-G., perused the material available on case file and gone through the case laws. The specific role to the applicant is attributed by catching hold of Ehsanullah (deceased) which facilitated co-accused Muhammad Saeed to hit direct fire upon him which caused his murder. The eyewitnesses have fully implicated the applicant by describing the role performed by the applicant in committing murder of Ehsanullah (deceased).
8. Prima facie involvement of applicant in commission of offence cannot be ruled out.
9. ' In case of Zia-ul-Hassan (supra), the Honourable Apex Court has held that 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 is that B the intended arrest would be tainted with mala fides which must be specifically stated. The Court has also viewed regarding condition of irreparable injury on the basis of motivated police. In case of Muhammad Yaqub v. Muhammad Ramzan (supra) it is held that the person seeking pre-arrest bail has to establish that case was mala fide and he was being involved to be disgraced. C Where none of such facts exist concession pre-arrest bail cannot be extended to the applicant. In case of Muhammad Subtain Shah (supra) the Hon'ble Supreme Court of Pakistan has held at the time of deciding bail before arrest, question raised involving inquiry into factual matters and such matters can not be undertaken while deciding pre-arrest bail application. The grant of bail is discretionary matter and since learned trial Judge has not exercised his discretion arbitrarily or capriciously, the Apex Court has not interfered with the order refusing of bail. In case of Abdul Ghani (supra), the Hon'ble Apex Court has . Held that evidence of parties can not be assessed/ tested in depth at bail stage, purpose being to avoid confliction of opinion one way or the other on the merits of the case. In case of Muhammad Azam (supra), the Honourable Apex Court has held that right of pre-arrest bail is limited to exceptional and rare cases which are based on mala fides/ enmity or where no material is shown to have been committed on the bare reading.
10. ' In the light of above discussion and case laws and in presence of serious allegations levelled against the applicant, who is assigned specific role and no apprehension is shown on account of motivation on the part of police, I am of the considered view the discretion exercised by learned trial Judge by refusing bail before arrest to the applicant has rightly been exercised. The right of pre-arrest bail is limited to exceptional and rare cases which are lacking in the case of applicant.
11. ' Accordingly, bail application is dismissed along with listed applications. The case laws cited by learned counsel for the applicant are not applicable to the facts and circumstances of the case in hand.