1. Abdul Khaliq was granted interim bail before arrest by this Court on 13th May, 1984, on the ground that co-accused Fahim and Mirza Majeed were granted bail before arrest by learned Sessions Judge, Karachi.
2. Application of Abdul Khaliq came up for confirmation on 27th May, 1984, when Mr. AA.
3. Mohamedalley, Assistant Advocate-General pointed out that in this incident as many as four persons sustained injuries by firearm at the hands of the accused mentioned in the F.1.R. A show- cause notice for the cancellation of the bail was issued to Mirza Majeed and Fahim.
4. The application of Abdul Khaliq for confirmation of bail is fixed for hearing today and Mirza Majeed and Fahim are also present in persuance of the show-cause notice issued by this Court.
5. The facts of the prosecution case in brief are that on 10th March, 1984, at 9-15 p.m. Jawaid Ahmed son of Tahir resident of Khudad Khan Colony was sitting in his house where Jawaid Ahmed son of Naseer Ahmed was also present who came to see him from Nazimabad. The children of Mohallah informed them that Ghulam Sayeed and Abdul Salam were being beaten by Police constable Khalique, Shahid, Fahim and Mirza Majeed are behind Jacob Lines. They went to Quetta Hotel and on the way Ghulam Nabi also joined them. When they reached near the hotel they saw many persons standing at the distance of 10 paces from the hotel when Khaliq policeman having revolver in his hand Shahid with pistol, Fahim with revolver and Mirza Majeed with rifle (12 bore). On enquiry as to why they had beaten Ghulam Sayeed and Abdul Salam they opened firing. Shahid fired at Ghulam Nabi which hit on his right side sheet, Khaliq Policeman fired at Javed Ahmed, Fahim fired which hit by one passerby whose name subsequently disclosed as Qamar Ali and fire of 12 bore gun of Mirza Majeed hit several children of the Mohallah. Several persons including Muhammad Alam, Muhammad Siddique, Rauf, Fayyaz were present and intervened. Accused while firing in the air ran away from the scene of offence. Muhammad Javaid took Javaid Ahmed and Ghulam Nabi to Jinnah hospital and then lodged report with Police Station Brigade Karachi at 1 a.m.
6. The report was registered under section 307/34, P.P.C.
7. Applicant Khaliq, Fahim and Mirza Majeed moved an application for bail before arrest, before the learned Sessions Judge, Karachi who granted them interim bail and then on 26th April, 1984 he confirmed the bail of Mirza Abdul Majeed and Fahim and recalled the order of to Abdul Khaliq, therefore, he filed application before this Court.
8. I have heard Mr. Abdul Razzak Puri, Advocate for applicant Abdul Khalique, Mr. Mansoob Ali Qureshi, Advocate for Fahim, respondent. Mirza Abdul Majeed who is present in person and states that he is innocent.
9. The learned counsel appearing for the applicant have contended that according to medical certificate injuries on the person of injured have been declared to be simple, therefore, there was no intention on the part of the applicants to commit the murder and according to them it is a night time incident as such identification is doubtful. On the point of principle of bail before arrest the learned counsel have cited PLD 1949 Lah. 21, PLD 1955 FC 170 and stated that bail before arrest has rightly been granted in view of the medical certificates.
10. Mr. A.A. Mohamedally, Assistant Advocate General has submitted that in this incident as many as five persons sustained injuries by fire arm at the hands of the accused. He has also contended that one Fateh Muhammad a boy of Mohalla received as many as 7 injuries of the fire-arm and specifically weapons of offence have been attributed to the applicants and no maia fide has been shown on the part of complainant to implicate the accused falsely. He, therefore, states that this is not a fit case for grant of bail before arrest and he has cited PLD 1983 SC 82, 1983 SCMR 645 and 1983 P Cr. L J 852.
11. The learned Sessions Judge, Karachi in his impugned order has nowhere mentioned that complainant party had implicated accused with mala fide intention. In this case as manyas four persons Javaid Ahmed, Fateh Muhammad, Ghulam Nabi, Saifur Rehman and Qamar Ali received injuries and medical certificates of four injured except Qamar are on record and they have during investigation implicated the accused. The incident took place in the city and at .Public place and no enmity is shown with injured.
12. For the purpose of pre-arrest bail the principles have been laid down by the Superior Court. In case of Murad Khan v. Fazal-e-Subhan aad others , their Lordships have held that conditions for grant of pre-arrest bail that accused are involved with ulterior motives such as humiliation and unjustified harassm ent. The observations made at page 85--C are as under :- The foregoing reasons of the case-law since 1949 and the trend of authority would show that notwithstanding varied facts, this Court always thought it necessary to look for such circumstances which would furnish the assumption that the police was motivated on political considerations or other ulterior reasons before granting pre-arrest bail."
13. In other case of Muhammad Safdar and others V. The State , the application for bail before arrest in a case under section 324/325/148/149, P.P.C. Was dismissed by High Court and applicants moved Supreme Court. It has been observed by the Honourable Judge of the Supreme Court that bail before arrest is not the Rule in cognizable offences and it is to be allowed only when it can be shown that the petitioner apprehends arrest due to some ulterior motives on the part of the authorities or other influential persons or there are some peculiar features of the case which would justify the exercise of this discretionary power by the High Court or the Court of Sessions.
14. I would also like to refer a case Zia-ul-Hassan v. The State , where it has been held by the Supreme Court that the Court have 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 the1 2 3 intended arrest would be tainted with mala fide which must be specifically stated. It is in this context also that the other conditions of irreparabie loss is to be viewed. Learned counsel appearing before us did not mention any fact to suggest that the arrest in case could be mala fide.
15. The High Court indeed was fully justified to interfere with the illegal order brought before it for scrutiny.
16. A copy of this judgment shall be sent to the learned trial Judge who passed the order impugned before the High Court so that he should further rstudy the law on question of pre-arrest bail.
17. In these circumstances I am of the considered opinion that in view of the case-law as discussed above no case for bail before arrest is made out. Accordingly the order dated 26th April,, 1984 of the learned Sessions Judge granting bail before arrest of Fahim and Mirza Abdul Majid is set aside.
18. They be remanded to custody if required in a case or Police can arrest them as the case may be. I also recall the order dated 13th May, 1984, granting interim bail to Abdul Khaliq. PLD 1983 SC 82 1983 SCMR 645 PLD 1984 SC 192