' This is a petition for anticipatory bail on behalf of Maqsood Ahmad, who has been named as an accused person in a case under section 302/148/149, P.P.C. Registered vide F.I.R. No, 397, dated 29- 9-1984 at police station Kamoke. It was alleged therein that the occurrence took place on 28-9- 1984 at 9.30 p.m. Muhammad Arshad deceased had gone for a film show on that evening at about 9.00. His brother Muhammad Ashraf was informed after about half an hour that Muhammad Arshad had a quarrel with Yaqoob (a co-accused of the present petitioner). He went to that side and found Arshad deceased sitting with Abbas P.W. At the Pan shop of Muhammad Jamil. He was still going to ask him about the incident when Muhammad Ilyas armed with Chhuri, Yaqoob armed with Danda, alongwith Muhammad Yasin and Liaqat All both empty-handed came there.
Muhammad Ilyas accused asked Arshad deceased as to why he had beaten Yaqoob alias Mochha accused. At this, Arshad gave a slap to Ilyas. It is alleged that Maqsood Pahlwan petitioner was standing inside the Cinema main gate. He shouted at the accused from that place that they should kill him. At this, Muhammad Yasin caught Arshad deceased while Liaqat Ali accused caught Abbas P.W. , whereas Muhammad Ilyas and Yaqoob gave injuries to Arshad deceased and Abbas P.W. The occurrence was witnessed by the complainant, Muhammad Siddiq, and Jan Muhammad P.Ws. The accused thereafter, went away from the place of occurrence with their respective weapons. The injured were taken to the hospital and after their medical examination the present case was registered.
2. In support of this petition, it is contended by the learned counsel for the petitioner that he has been involved in this case with mala fide, which is given in detail in paragrph No,4 of the petition. It is stated by him that the deceased Arshad was running carpet business and had two looms for manufacture of carpets, and that the petitioner Maqsood also started the same business in the same locality which resulted in business loss of the complainant party. It was, therefore, argued that the petitioner, has got no connection whatsoever with his accused and has been implicated in this case on account of business rivalry.
' On merits, it is contended by him that the petitioner was not present at the place of occurrence; that he had not arrived at the spot alongwith the other four accused; that according to F.I.R. The petitioner was empty-handed and standing inside the main cinema gate and, as such, it cannot be said that he shared the common intention/ object with his co-accused; that he had no motive to assault Muhammad Arshad deceased or Abbas P.W.; and that he was not present at the time of the first incident which took place between Muhammad Arshad deceased and Yaqoob Mochha accused. It is, therefore, submitted that the petitioner be allowed anticipatory bail in this case.
3. Learned counsel for the complainant, on the other hand, has vehemently opposed this petition. It is contended by him that though no injury has been attributed to the petitioner yet he is the pivot and the main accused in this case. It is further contended by him that Lalkara attributed to the petitioner was material in the present occurrence and the accused initiated attack after the said Lalkara. It was next contended by him that the petitioner made an application through an Advocate to the investigating officer naming certain defence witnesses who did not come forward to support his plea. Therefore, it was argued that the petitioner was prima facie guilty of the charge. Relying on Zia-ul-Hassan v. The State PLD 1989 SCMR 192, it was contended by the learned counsel for the complainant that bail before arrest can be ordered only on the ground of specific mala fides by an accused person. It was, therefore, submitted that the petitioner is not entitled to anticipatory bail.
' Learned counsel for the State adopted the arguments of the learned counsel for the complainant.
4. On a perusal of the petition for anticipatory bail, I find that the petitioner specifically narrated the facts of mala fides in paragraph No, 4 of his petition for bail. It was stated by him that he had been falsely implicated on account of business rivalry. Muhammad Aslam A.S.I., who had brought the record, admitted that Arshad deceased had two powerlooms, who had stopped the said business some time before the present occurrence. It was also admitted by him that Maqsood petitioner was having carpet powerlooms in the same locality.
5. Learned counsel for the complainant contradicted the above-mentioned police officer by saying that Arshad never had carpet manufacturing looms. Muhammad Ashraf complainant, who was present in Court with his counsel, on my query, stated that Arshad deceased owned some powerlooms for manufacture of carpet before the occurrent and that he even at the time of occurrence was left with two powerlooms He also admitted that the accused was running carpet manufacturing looms for the last 5/6 years. In this view of the matter, I am prim facie of the view that the present petitioner has been implicated in this case with mala fides. In this view of the matter, the case of Zia-ul-Hassan cited by the learned counsel for the complainant does not put any ba in allowing anticipatory bail to the petitioner. It was held by their Lordships in Zia-ul- Hassan's case 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 that all being that the intended arrest would be tainted with mala fides which must be specifically stated." As stated above, the petitioner specifically stated the mala fides in his petition for anticipatory bail and the same is also apparent from the admission of A.S.I. Muhammad Aslam and Muhammad Ashraf complainant.
On merits, it is clear from the F.I.R. That the petitioner did not arrive at the spot alongwith the other four accused. He has no direct motive in the instant case. He was empty-handed and standing inside the main cinema gate.
6. In view of the above discussions, this petition is accepted and the interim bail allowed to the petitioner on 9-10-1984 is confirmed.