1. ' IMAM BUX BALOCH, J.---Applicant Abdul Razak after unsuccessful in getting pre-arrest bail by the trial Court has approached this. Court for pre-arrest bail. On 26-1-2010 he was granted ad interim pre-arrest bail without touching the merits of the case.
2. ' Precisely, facts of the case are that complainant Shahid Hussain along with his brother Altaf Hussain, injured Zeeshan and Azad were going to look after their agricultural lands, at 9-00 a.m.
3. When they reached near Eid Gah where accused Sajjad Ali, Javed Ali both sons of Ghulam Nabi Soomro, Master Abdul Razak son of Aqil Soomro, Ghulamuddin on of Abdul Sattar, all residents of Thariri Mohabat met with them. Sajjad Ali and Javed Ali were having Iron rods and Dandas whereas Abdul Razak was having Iron rod and Ghulamuddin having Iron pipe. Sajjad Ali abused the complainant party and asked them that they have prevented them from taking bath in the Nara Canal and today they will not be spared. It is stated that Sajjad Ali caused Iron rod blows on the head of Altaf Hussain and Master Abdul Razak has caused Iron rod blow at the arm of Altaf Hussain.
4. It is further case of prosecution that Javed Ali also caused Iron rod blow to complainant Shahid Hussain at his head and other parts of the body and all accused caused blows to Azad and Zeeshan. The complainant took the injured persons and went to Taluka Hospital, Mehar for first aid where the authorities of T,aluka Hospital referred injured Altaf Hussain to Chandka Medical College Hospital, Larkana where in the way Altaf Hussain succumbed to the injuries. Subsequently, complainant went to Police Station and lodged the F.I.R.
5. ' Learned counsel for the applicant contended that at the first instance the injured was examined by the Medical Officer at Taluka Hospital Mehar and he has found two injuries and there is no injury at the arm in the first medical certificate. He contended that due to mala fide intention and ulterior motives the applicant was involved by the. Complainant. He is a respectable person and a teacher by profession. He has relied upon the case-law Muhammad Siddique and another v. The State 2004 PCr.LJ 450, Malik Ejaz Ali v. The State 2005 M LD 997, Rafique Ahmed v. The Sate 2000 PCr.LJ 994, Lal Muhammad Kalharo and others v. The State 2007 SCM R 843 and Kabeer Abid and another v.
6. The State 2008 M LD 1293. In the last, he contended that ad-interim bail granted to the applicant may be confirmed.
7. ' On the other hand, Mr. Rashid Mustafa Solangi, Advocate for the complainant contended that the postmortem report of deceased Altaf Hussain revealed that he has received three injuries which are as under:--
(1) Lacerated wound of 6 cm x1/2 cm on left parietal region of skull and fracture of parietal bone.
(2) Lacerated wound of 4 cm x 1/'2 cm on left parietal region of skull above injury No.l.
(3) Lacerated wound 1 cm x 1 cm on mid of left upper arm laterally.
8. ' He contended that the injury attributed to the applicant is shown in the postmortem report. The medical evidence is in conformity with the ocular evidence. He further contended that four persons were injured in the attack by the accused. One of them, Altaf Hussain, lost his life. In the circumstances, he contended that there is no mala fide intention or ulterior motive on the part of complainant to involve the present applicant. The applicant has failed to establish mala fides and ulterior motives. He vehemently opposed the confirmation of bail. He has relied upon case of Zia-- ulHassan v. The State PLD 1984 SC 192, Masood Ahmed v. The State 2006 SCM R 933 and Ch. Waris Ali v. The State 2007 SCMR 1067.
9. ' Mr. Mosab Ali Dhamrah, State counsel supported the arguments of Mr. Rashid Mustafa Solangi,.
10. And contended that the applicant has shared common intention and specifically attributed the role of causing injury at the arm of deceased Altaf Hussain. He further contended that there is no mala fide on the part of complainant to involve the present applicant.
11. ' I have considered the submissions advanced at the bar by the learned counsel for the respective parties and have gone through the material collected during the investigation. The F.I.R is promptly lodged by the complainant and narrate the facts as occurred at the time of incident. The specific role is attributed to the applicant in the F.I.R. The postmortem report of deceased Aitaf Hussain is in conformity with the F.I.R. The case of Kabeer Abid (supra) is on different footings. The case of Lal Muhammad (supra) is a case of forgery and facts and circumstances of that case are distinguishable from the case in hand. The facts and circumstances of case of Malik Ejaz All (supra) are also distinguishable from the case in hand. The facts of Muhammad Siddique (supra) are also distinguishable from the facts and circumstances of this case. In the case of Rafique Ahmed (supra) under sections 306, 448, 147 and 148, P.P.C. And the facts of the case are different from the case in hand. The element of mala fide which is a condition precedent for grant of bail before arrest is missing. The reliance placed by the learned counsel for the complainant in the case of Masood Ahmed (Supra) the honourable Supreme Court observed as under:-- "(3) The accusation levelled against the petitioners in the F.I.R is prima facie supported by the Medico-Legal Report of the victim. Besides, the element of mala fide, which is a condition precedent for grant of bail before arrest, is missing. The contention with regard to cross-version of the case raised by the learned counsel for the petitioner is too intricate to be considered at this stage."
12. ' In the case of Ch. Waris Ali (supra), the honourable apex Court held as under:-- "(7) We have gone through the impugned order and are of the view that the same is unexceptionable and does not call for interference. It is the settled principle of law that bail before arrest can be granted A when the arrest of accused is eminent, with ulterior motive, mala fide or is due to false implication apparent on the face of record. Examining the case of respondent on the above touchstone, we are persuaded to agree that petitioner has failed to point out any mala fide or ulterior motive on the part of the complainant. He has been named in the F.I.R. And specific role of aerial firing has been attributed to him. The recovery of licensed rifle of petitioner from the place of incident shows his involvement in the offence. The petitioner was found involved in the commission of offence by two Investigating Officers. Accordingly, the petition being devoid of any substance stands dismissed and leave to appeal refused. The order, dated 29-5-2007 whereby petitioner was granted ad interim pre-arrest bail by this Court is recalled.
13. ' In the case of Zia-ul-Hassan (Supra) it was held as under:-- "The last two arguments can be considered together. The possible recovery of stolen or misappropriated articles or articles used in the commission of the crime amongst other types of recovery, can be a good ground for cancellation of bail. There is no bar of propriety or law in this behalf. In this behalf it is the duty, amongst others, of the Court granting pre-arrest bail to examine the question whether such an action would not frustrate the investigation vis-a-vis various factors including the relevant recovery. If the order granting pre-arrest bail by the trial Court is silent about it, the presumption would be that it was not conscious about the same.
14. ' In this case not only that the learned trial Judge was unaware of this aspect of the case but also the order shows lack of awareness of the basic law about the pre-arrest bail as distinguished from the bail after arrest. 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 all being that the intended arrest would be tainted with mala fides which must be specifically stated. It is in this context also that the other condition of irreparable loss is to be viewed.
15. ' Learned counsel appearing before us did not mention any fact to suggest that the arrest in this case would be mala fide. The High Court indeed was fully justified to interfere with the illegal order brought before it for scrutiny."
16. ' Four persons had received injuries in the attack, one Altaf Hussain lost his life and three were injured at the hands of accused party. The postmortem report clearly shows injury attributed to the present applicant. It might be possible that at the first examination at Taluka Hospital Mehar, the injury escaped from the notice of the medical officer who had firstly examined injured Altaf Hussain. The ocular evidence is in conformity with the medical evidence. The complainant promptly lodged the F.I.R without loss of time and specific role is attributed to the present applicant by the complainant. There is no mala fide or ulterior motive or enmity proved by the applicant. I see no merit in confirming the pre-arrest bail granted to the applicant. For the foregoing reasons I recall the order dated 26-1-2010 and dismiss the pre-arrest bail application.