' This order will dispose of aforementioned bail applications as both the crimes in which bail has been applied by the same applicants are linked and connected which can be disposed of conveniently by this common order.
2. The gist of complaints is as under:--
(a) Crime No, 35 of 2014.
' This F.I.R. Has been lodged by complainant Muhammad Hussain under Sections 302, 114, 34, PPC at Police Station Bandhi. The incident occurred on 8.6.2014 and the F.I.R. Was - lodged on the same day. The complainant stated that he has three sons. One month back from the date of incident Muhammad Nawaz Jamali and others exchanged hot words with the son of the complainant and also fought, with each other on which Muhammad Nawaz Jamali and others were annoyed and they threatened to murder the son of the complainant. On the fateful day complainant along with his sons Mumtaz Ali and Mir Muhammad Jamali, maternal cousin Muhammad Rafique Brohi was present in his house when complainant's son went out of the house, there was some hue and cry so the complainant, his son Meer Muhammad and maternal cousin Muhammad Rafique came out from the house and saw Muhammad Nawaz Jamali, Haq Nawaz Jamali armed with pistols and Rab Nawaz Jamali empty handed (Applicants) standing with complainant's son Mumtaz Ali. The accused Rab Nawaz Jamali instigated other accused persons and on his instigation Haq Nawaz Jamali and Muhammad Nawaz Jamali made straight fires on the son of complainant Mumtaz Ali Jamali. The complainant's son sustained fire-arm injury on his left side of abdomen and another fire was hit on the right side of face and blood was oozing and he died instantaneously. The complainant took the dead body to R.H.C. Bandhi for postmortem and also informed the police through mobile phone.
(b) Crime No, 38/2014 ' In this crime the complainant is State through Head Constable Sahib Khan Helepoto. The F.I.R was lodged on 15.6.2014 under Section 302, 311, 120-B, 114 & 34, P.P.0 at P.0 Bandhi. It is stated the H.C.
Sahib Khan along with other police officials was on patrolling on 8.6.2014. He received a spy information that Rab Nawaz, Muhammad Nawaz and Haq Nawaz Jamali (Applicants) had committed the murder of Mumtaz Ali Jamali and they have also consulted to kill their sister Mst.
Panah Khatoon wife of Abdul Majeed Jamali on the pretext of honour. On receiving such information, H.C. Sahib Khan proceeded towards the house of Abdul Majeed Jamali where they saw Rab Nawaz Jamali empty handed while Haq Nawaz Jamali and Muhammad Nawaz Jamali were carrying pistols and they entered into the house of Abdul Majeed Jamali. The door of the house of Abdul Majeed Jamali was lying open where they saw that the applicants/accused raising allegations against their sister that she had illicit relationship with Mumtaz Ali Jamali. Muhammad Nawaz Jamli made straight fire on his sister Mst. Panah Khatoon which hit her below the left side of forehead near the eye and Haq Nawaz Jamali made straight fire which hit her left hand near the thumb. On seen the complainant party the applicants/accused climbed the wall and escaped.
Mst. Panah Khatoon died and after completion of legal formalities, her post-mortem was conducted and F.I.R. Was lodged.
3. Both the bail applications were fixed for orders on 25.2.2015 before the learned Judge of this Court for seeking interim pre-arrest bail but he preferred to issue notice to the complainants and A.P.G. In the meanwhile no interim pre-arrest bail was granted to the applicants.
4. The learned counsel for the applicants argued that the applicants have been falsely implicated in both the cases. There is no reasonable ground to believe that applicants/accused have committed the offence of murder. It was further averred that the interim pre-arrest bail was granted by the trial Court which was recalled vide order dated 20.2.2015. The main thrust of his arguments was that the legal heirs of both the deceased person have patched-up the matter outside the Court and they have pardoned and forgive the applicants/accused. The husband and mother of deceased have separately filed their affidavits of no objection in the trial Court. So far as the. Crime No, 38/2014 is concerned, he argued that it was lodged after the delay of seven days without any explanation. The L.Rs, have patched up the matter with the intervention of nekmards.
He further argued that while dismissing the bail applications, the trial Court has failed to appreciate that the matter has been amicably patched up and resolved. Had the trial Court confirmed the interim pre-arrest bail, the parties could have filed their compromise applications more conveniently and if the applicants are arrested, they will have to face undue humiliation and harassm ent.
5. On the contrary, the learned A.P.G. Argued that this is a case of double murder so the applicants cannot claim the concession of interim pre-arrest bail as a matter of right on the plea of alleged patched up/compromise. The son of the complainant in Crime No, 35 of 2014 was murdered by the same applicants, thereafter; they also murdered their sister on the pretext of honour killing so they do not deserve any leniency. Mere filing affidavit of complainant and or legal heirs of deceased in the trial Court exonerating the applicants is no ground for seeking bail. He vehemently opposed the bail applications and supported the order passed by the learned trial Court dismissing the bail applications of the applicants.
6. Heard the arguments. A quick look to the grounds raised in the application or argued by the counsel for the applicants in support of bail plea unequivocally demonstrated that he only focused the alleged compromise that since the parties have resolved the issue and patched up the matter amicably, therefore, the discretion of granting pre-arrest bail must be exercised by this Court, in applicants favour no matter the seriousness or heinousness of the offence. Whether the complainant has entered into compromise or not or if yes? Whether it was agreed with free will and without any duress or coercion, this crucial aspect can only be decided by the trial Court when appropriate application will be moved where the requisite inquiry will be conducted before passing the final order on the compromise application. It is time and again held by the superior Courts that mere filing of affidavit or giving no objection by the legal heirs of any deceased person does not make the accused persons entitled for bail automatically but their case needs to be considered on the touchstone of Section 497, Cr.P.C. To perceive and examine for reaching just and tentative assessm ent. Whether any reasonable ground exists for the grant of bail or not. Though in both the crimes it was stated that Rab Nawaz one of the applicants was empty handed but he cannot be given benefit of bail as in both the scenes of crimes committed on the same day but at different time; he was present and the offence stated to have been committed on his instigation and all the applicants in league went to the scene of offence with common intention. If several persons would unite with common purpose to do any criminal offence, all those who would assist in the completion of their object would be equally guilty. Foundation of constructive liability is the common intention in meeting accused to do the criminal act and the doing of such act in furtherance of common intention to commit the offence. In order to constitute an offence under Section 34, PPC, it is not required that a person should necessarily performed any act with his own hand. If several persons had the common intention of doing a particular criminal act and if in furtherance of their common intention all of them joint together and added or abated each other in the commission of an act, then one out of three could not actually with his own hand, do the act but if he would help by his presence or by other act in the commission of an act, he would be held to have himself done that act within the meaning of Section 34 PPC. Principle of vicarious liability can be looked into even at bail stage if from the FIR, accused appeared to have acted in pre- concert or shared to community of intention with his co-accused who caused fatal injury to deceased then he can also be saddled by constructive or vicarious liability. Reference can be made to my own bail order reported in 2011 M LD 1171 (Mulo Ahmed v. State).
7. The learned counsel further argued that Crime No, 38 of 2014 was lodged on 15.6.2014 while offence was committed on 8.6.2014 so there is a considerable delay in lodging the F.I.R. But on the other hand the H.C. Sahib Khan Halepoto himself mentioned in Column No, 5 that due to not lodging F.I.R. By the legal heirs of deceased the State intervened and lodged the F.I.R. So in my view he has reasonably explained the delay. Difference in bail before arrest and after arrest is that in pre-arrest, elements of mala fide, false involvement, arrest with motive of humiliation and malicious prosecution shall be present. When the condition of mala fide or other elements are not satisfied, no case of bail is made out. The above elements and or ingredients are lacking in the present case. The purpose of pre-arrest bail is to protect a person from disgrace and to avoid humiliation. This concession cannot be allowed when prima facie murder case is made out. The applicants have been nominated with specific roles i,e, causing fire-arm injury to both the deceased persons. The applicants committed murder in presence of more than three eye- witnesses. Police has recorded the statements under Section 161, Cr.P.C. And all witnesses have clearly implicated the applicants in the offence in question. It is well settled proposition of law that bail before arrest the person seeking it satisfies the conditions specified through sub-section (2) of Section 497 of Code of Criminal Procedure. He has to establish he that the he was not guilty of the offence alleged against him and that there are sufficient applicants failed to satisfy. Two persons had lost their precious life on the pretext of honor killing that has become a menace and invariable threat to the society which needs to be discouraged vigorously on the rampage. In the case of Muhammad Arshad v. Muhammad Rafique (PLD 2009 Supreme Court 427), the honorable Supreme Court has summarized the grounds on which the benefit of pre-arrest bail can be extended, which are as under--
(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;
(b) pre-arrest bail is not to be used as a substitute or as anal tentative for post-arrest bail;
(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of Section 497 of Code of Criminal Procedure I,e unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;
(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonor him;
(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. He had no past criminal record or that he had not been a fugitive from law; and finally that;
(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instance i,e, the Court of Sessions, before petitioning the High Court for the purpose.
8. Though under Section 345, Cr.P.C. The offences punishable under the Sections of, PPC specified in the first two columns of the table may be compounded by the persons mentioned in the third of column of that table. However, sub-section (2-A) of Section 345, Cr.P.C. Undoubtedly envisions and look forward to a situation where an offence under Chapter XVI of, PPC has been committed in the name or on the pretext of Karo Kari, Siyah Kari or similar other customs or practices, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case. The learned counsel for the applicant robustly argued that the legal heirs of both the deceased persons have agreed to compromise the offence but in view of sub-section (2-A) of Section 345, Cr.P.C., it is for the trial Court to decide whether the offence can be waived or compounded and what conditions are required to be imposed having regard to the facts and circumstances of the case.
9. As a result of above discussion both bail applications are dismissed. The above findings are tentative in nature and shall not prejudice the case of either party in the trial Court.