ZAFAR AHMED RAJPUT , J.---Through instant criminal bail application, applicants/accused Adam son of Moharram and Moharram son of Abdul Hakeem, seek pre-arrest bail in FIR/Cri me No. 92 of 2018, lodged on 22.05.2018, at 08:00 p.m., by complainant Ghulam Zohran at Police Station Faiz Gang, District Khairpur under Sections 302, 34, 148, 149, 114, P.P.C. Their earlier Cr. Pre-arrest Bail Application bearing No. 1258 of 2018 was heard and dismissed by the learned Additional Sessions Judge-IV , Khairpur , vide order dated 22.06.2018.
2. As per FIR, Moharram Ali Khaskheli (applicant No.2 ), cousin of complainant's husband, was annoyed with complainant over her refusal to give her daughter's hand to his son. On 22.05.201 8, the complainant having been received treatment from a private hospital of Karoondi Town coming back to their village along with her sons Aijaz, Muhammad Yousuf her brother-in-law Muhammad Ibrahim, and relatives Muhammad Afzal and Riaz on two motorcycles and reached Dargah Syed Hussain Shah Link Road, near house of Adam Ali (applicant No.1 ), at 11:30 a.m., where accused persons, namely , (1) Adam Ali (2) Abdul Hakeem, duly armed with gun (3) Abdul Majeed (4)
Ahmed Ali (5) Muhammad Khan, duly armed with hatchet (b) Moharram Ali (7) Abdul Jabbar (8) Yar Muhammad, and two unidentified persons, armed with lathies, stopped them and on the instigations of Moharram Ali, Adam Ali fired with his gun at Aijaz Ali which hit him on his head and he fell down; Abdul Hakeem fired with his gun at Muhammad Yousuf which hit him on his left leg ankle; Abdul Majeed caused hatchet blow to Muhammad Ibrahim on his head while all other accused persons attacked on other members of complainant party with hatchet and butts blows and; thereafter , they ran away seeing the neighbors coming there on the cries of complainant party .
Aijaz Ali, the injured son of the complainant, succumbed to injury at the spot.
3. Learned counsel for the applicants has contended that the applicants are innocent and have falsely been implicated in this case by the complainant for ulterior motives; that prior to lodging of instant FIR, one Mst.
Hakimzadi lodged an FIR bearing No. 91 of 2018 under sections 452, 376, 511, P.P.C. against the husband and son of present complainant and in revenge, the complainant party attacked on the houses of applicants, they set fire to their houses and caused injuries to applicant Adam and such FIR bearing Nos. 93 of 2018 was lodged by Mst. Marvi wife of Abdul Jabbar under sections 324, 452, 49, 435, 427, 147, 148, 149, 337-H(2), P.P.C.- Jead with section 7 ATA; that there is a counter case and . it is yet to be determined as to which of the parties was aggressor and which had been the victim; that no specific role, bas been attributed to applicant Moharram except the instigation, hence vicarious liability of said applicant, if any, shall be determined by the trial court after a full-fledged trial; hence, the guilt of applicants within the ambit of further inquiry entitling them to grant of bail..
4. On the other hand, learned counsel for the complainant and D.P.G. for the State have vehemently opposed this application on the ground that the applicants are nominated in the FIR with specific role; that on the instigation, of applicant Moharram, applicant Adam made straight fire at deceased Aijaz on his head who died at the spot; that the FIR of the present complainant is earlier in time and though both the incidents have taken place in Deh Sijawal, but the places of incidents are dif ferent.
5. I have considered the arguments advanced by the learned counsel for the applicants, complainant and learned D.P.G. as well as perused the material available on record.
6. So far the argument regarding cross-cases are concerned, suffice to say it that each case for grant of bail is to be decided on the basis of material available on record and as observed in the case of Nasir Muhammad Wassan and another v. The State (1992 SCMR 501), Qamar Abbas and 2 others v. Sohail Siddiqui (1998 MLD 1132) and Allah Wisaya and 2 others v. The State (1980 PCr.LJ 105) mere existence of cross-cases cannot be a ground for grant of bail and an accused is not entitled to bail as a matter of right for reason of counter-cases.
7. Bail before arrest in a heinous crime like murder is an exception and is allowed only if it is established to the satisfaction of Court that the implication of an accused in the case is motivated by ulterior motives. In the instant case, applicant Adam has been nominated in promptly lodged FIR with specific role of causing fatal gunshot to deceased Aijaz Ali on his head and the accusation against him is supported by medical evidence. The prosecution version as given in the FIR gets support from the fact that other prosecution witnes ses have also sustained number of injuries on their persons. The recovery of crime weapon has yet to be, made by the police; hence, grant of pre- arrest bail to applicant Adam may cause setback in investigation and can stand as a stumbling block in the way of recovery of incriminating article; therefore, discretion for grant of extraordinary concession of bail before arrest has to be exercised with utmost care and caution and the underlying principle is that neither the prosecution nor the case of defence should be prejudged and prejudiced.
8. From the tentative assessment of the evidence in hands of prosecution, I am of the view that prima-facie sufficient evidence is available against the applicant Adam to connect him with the commission of alleged offence, carrying punishment for death and imprisonment for life. The counsel for applicant s has not been able to point out any special feature of the case entitling applicant Adam to grant of extra-ordinary concession of pre-arrest bail. Pre- requisites for such concession i.e. malice and ulterior motive, either on the part of complainant or the police are conspicuously missing in the case, as the complainant, who is the eye-witness and mother of the said deceased, prima facie has no ulterior motive to implicate him falsely with commission of alleged offence; hence, it is not a fit case for the grant of pre-arrest bail to him.
9. The case of applicant Moharram for the grant of pre-arrest bail; however , appears to be on different footings, as no direct role has been, attributed to him. The allegation against him is that he was present at the scene of occurrence armed with lathi and instigated co-accused persons.
He is father of co-accused Adam Ali and Abdul Hakeem; hence, possibility of his mala fide involvement in the commission of crime cannot be ruled out. Question whether he had called out the principal accused and exhorted them to commit alleged act needs further enquiry as envisaged under subsection (2) of section 497, Cr .P.C.
10. For the foregoing facts and reasons, interim pre-arrest bail granted to applicant Muharram vide order , dated 27.06.2018, is confirmed on the same terms and conditions, while pre-arrest bail to application Adam is refused and his interim pre-arrest bail is recalled.
11. Above are the reasons of my short order dated 29.03.2019.