' Muhammad Pervez complainant charges accused respondent Badi-uz-Zaman, Khaliro Khan and Anwer Zeb brothers inter se for th murder of Momin Khan by firing at him with 7 MM rifle in furtherance of their common intention at Degar Vela i.e, 16-30 hours on 3-12-1988 at a place known Bagh in the limits of Garhi Muzaffer Khan at distance of 22/23 kilometers from the P.S. Vide F.I.R. No, 222 P.S Battagram dated 4-12-1984 recorded at 4-30 hours. It was stated the some 3/4 days before the accused respondents had allegedly cut some our "Bier" trees from the fields of the complainant to the latter's annoyance and on , the day of occurrence they were called out by the accused in the evening for the settlement of the dispute. As soon Muhammad Pervez the complainant, his cousin Momin Khan deceased and Jamshed Khan P.W. Reached the place of occurrence the accused respondents were already present out of Anwar Zeb was armed with 7 NM rifle while the other accused were empty handed. During the course of altercation Badi-uz-Zaman started hurling abuses at the complainant Nhich were replied by Momin Khan deceased at which Khaliro Khan the accused called out to put them (complainant party) to death. Badi-uz-Zaman accused took rifle from Anwar Zeb and fired a shot at Nomin Khan deceased which hit him in his head on the right side and as a result he met an instantaneous death on the spot. At the alarm raised by the complainant party people from the neighbourhood were attracted who saw the accused decamping. Motive was reported to be the cutting of trees and the delay in the report was explained that the complainant travelled a long distance via Chattar Plain to come to P.S. Due to the fear of the accused.
2. Jamshed P.W. Examined under section 161, Cr.P.C. Was found duly supporting the allegations made in the F.I.R. Sher Dad and Haroon shown at points "D" and "E" respectively outside the village Takia had stated to have been attracted at the report of the fire shot and to have seen Badi-uz- Zaman armed with Topak and his brothers empty handed decamping to the side of the their houses from the spot after the' occurrence. They had further carried the dead body of the deceased from the spot on a cot to the house of the deceased. I.O. Had noted in the site plan that all the points on the spot were inter se visible and that the line of firing was straight and that the place of occurrence was situate in between villages Takia and Garhi Muzaffar Khan at a distance of 300 and 200 yards respectively. There have been further recovered blood-stained earth from the fields. There is also a note in the site plan that the blood-stained earth had been picked up from point No,1 and spread at point No, "8" in the fields of Badi-uz-Zaman accused respondent.
3. The post-mortem examination of the dead body was conducted on 4-12-1984 at about 1-30 p.m.
Reporting a fire-arm entrance wound on the right side temporem blowing out the right side skull and ear causing a cavity of wound. Death was reported instantaneous and the time between death and post-mortem was given within 15 to 20 hours. The stomach was reported intact containing semifluid material not dentified. The timing of death according to the post-mortem report becomes to between 5-30 p.m. To 10-30 p.m. On 3-4-1985.
4. During the course of investigation the Inquiry Officers were to record at different time that rumours were afoot that the deceased was killed by one Ghulam Nabi a tenant of Badi-uz-Zaman accused at night. The said Ghulam Nabi had also produced his unlicensed .7 mm rifle and a case was registered against him under section 13, Arms Ordinance. He has also recorded his confessional statement of opening fire at light at a thief when as a result of his fire shot the deceased was killed. He is reported to be 75/80 years old. The Inquiry Officers were, therefore, to look upon his statement with suspicion and have so not proceeded to join him as an accused in the case. Badi-uz-Zaman had forwarded a plea of alibi which has been investigated into. An verwhelming evidence was produced in support the plea. The Inquiry Officer was, however, to express his suspicion that after all how the accused respondents had entertained the suspicion that he will be charged for the murder of the deceased and were to work out on the plan of alibi at night before the registration of the case.
5. The accused respondents had approached the learned Sessions Judge, Mansehra for pre-arrest bail on 5-12-1984. They were admitted to the ad interim bail which was later on confirmed by a detailed order datetd 20-1-1985 mainly on grounds of delay in lodging of the F.I.R., plea of alibi agitated by Badi-uz-Zaman accused respondent and a contrary version given by Ghulam Nabi who had come forward to take responsibility of the occurrence having opened fire at the thieves at night while guarding the vegetables field of peppers and radish which also stand verified from the note of the Inquiry Officers on the site plan. Much credence has been given to the opinions of the Inquiry Officers who had recorded the rumours in the case diary that the occurrence had taken place at night which has, however, also been looked upon with suspicion simultaneously.
6. Learned counsel for the complainant argued that in the presence of direct charge in the F.1.R., the same receiving support from the ocular evidence, plea of alibi and confessional statement of Ghulam Nabi which have yet to be investigated into and to be proved at the trial and as such cannot be taken into consideration at a pre-arrest bail stage. He also contended that the indefinite opinions of the Inquiry Officers, are also not relevant for consideration at a pre-arrest bail application stage. He further read the orders of the learned Sessions Judge who had not referred to mala fides or ulterior motive on the part of the prosecution in order to falsely implicate the accused respondents on the charge of murder. On the other hand it was argued that opinions of the Inquiry Officers the confessional statement of Ghulam Nabi, the post-mortem report, the plea of alibi of Badi-uz-Zaman accused based on cogent evidence were all matters to create a doubt in the mind of the Court about the genuineness of the charge and that the accused respondents had been rightly granted a bail before arrest by the learned Sessions Judge which concession shall not be recalled.
7. Without dilating upon the merits of the case, lest the prosecution or accused may be prejudiced, this Court will deem it proper to point out to the learned Sessions Judge that there is to be drawn a line of distinction between a pre-arrest bail and after arrest bail. In case of a pre-arrest bail it is the duty of the Court to examine the question whether such an action would not frustrate the investigation. The Court is to be conscious of the fact that grant of pre-arrest bail is not rule but an exception, rarely to be used and only in case of mala fides. In fact the Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts are fulfilled, the most essential being that the intended arrest is motivated with mala fides which have to be specifically stated. Further the accused has also to show that irreparable loss is likely to be caused to him by the intending arrest. The accused have to make believe the Court that he is in no way involved in the commission of the offence charged with.
8. Looking at the case from the above perspective it cannot be said that it was a fit case for the grant of a pre-arrest bail. Herein the accused respondents were charged for an offence punishable with B death or imprisonment for life on 4-12-1984 by the F.I.R. In which the occurrence was reported to have been witnessed in daylight by persons not likely to mistake the identity of the accused and still the learned Sessions Judge had deemed it proper to admit the accused respondents to interim bail on 5-12-1984, later on also confirming his unjustified interim order. Let the long arms of law have the access to the accused respondents who should be arrested to join the investigation and the case to proceed further in accordance with law.
9. On the acceptance of the application the accused have accordingly been taken into custody and handed over to the police. Observations made shall have no bearing on the investigation and trial and also after arrest bail application to be disposed of on pure merits.
' Bail cancelled.