1. First-bail before arrest application was filed by applicant Abdul Raheem and his brother Muhammad Nawaz being Criminal Bail No. 357 of 1985 in the High Court which was disposed of vide order, dated 9-4-1985. Bail was granted to Muhammad Nawaz as he was empty handed and refused in respect of applicant Abdul Raheem on the ground that it was alleged that he fired at the deceased. Second bail application was filed on behalf of applicant Abdul Raheem being Criminal- Bail No. 404 of 1985 in the High Court which was dismissed for non-prosecution vide order, dated 12-9-1985. Third bail application being Criminal Bail No. 492 of 1985 was filed in the High Court on behalf of applicant which was disposed of vide order, dated 26-5-1985. It was observed therein that since previously bail plea of applicant was rejected on merits by the High Court no interference was called for. Learned counsel for the applicant did not press the bail application and withdrew the same for the reason that he wanted to apply to the Supreme Court for ball, in the result the said application was dismissed as not pressed. In the Supreme Court order of the High Court, dated 9-4-1985 (on the first bail application) was impugned and vide judgment, dated 22- 5-1985 leave was not granted and the petition was consequently dismissed on the ground that impugned order was passed in lawful exercise of discretionary jurisdiction vested in the High Court.
2. It is further observed by the Supreme Court that since the request was for interim protection to enable the petitioner to approach Sessions Court with the request of pre-arrest bail, merits should not have been gone into. It has been further observed by the Supreme Court that the above observations would not come in the way of the petitioner should he apply again for pre-arrest bail or for bail in the normal course under section 497, Cr.P.C. Applicant Abdul Raheem has again applied before the High Court for bail before arrest in view of the order passed by the Supreme Court on 27-5-1985. Mr. Abdul Mujeeb Pirzada, counsel for the applicants stated that since the Sessions Judge and the High Court have concurrent, jurisdiction in respect of bail before arrest as contemplated under section 498, Cr.P.C. He would press his bail application in the High Court in preference to Sessions Court as there are special reasons justifying doing so. He has explained those reasons as firstly that he would not succeed in surrendering before the learned Sessions Judge as he would be arrested by the local police, which is on the look out for him and waiting in the premises of the Sessions Court. Secondly that 'his bail plea on merits has been rejected by the High Court, which may dissuade the learned Sessions Judge from considering the bail plea on merits. Thirdly that order passed on first bail application in the High Court was not intended to be on merits but since his bail plea has been rejected on merits, he may be allowed to argue other aspects of the case as well on merits. Mr. Pirzada further submitted that in such circumstances it would be proper for the High Court to consider plea for bail before arrest in spite of the fact that it has concurrent jurisdiction with Sessions Court as envisaged by section 498, Cr.P.C. In support of the proposition reliance has been placed on the cases of Ch. Muhammad Anwar Samma and another v. The State 1976 SCMR 45 and Wali Muhammad v. The State 1973 P Cr. L J 873. Keeping in view the legal position enunciated in the reported cases and the reasons advanced by Mr. Pirzada his request is accepted.
3. Now since I am dealing with application for bail before arrest on merits, it would be pertinent to point out here some relevant facts of the case. Incident is alleged to have taken place on 24-3- 1985 at 8-00 a.m. In the agricultural land of deceased Ajeebullah, situate in Chak No. 1 deh Ulra in district Khairpur. Report is lodged on the same day at 11-00 a. m. At Police Station Pirjo Goth which is at a distance of 10 miles from the place of occurrence. The F.I.R. Is lodged by eye-witness Qaim Odho who is uncle of deceased. Including complainant, there are in all four eye-witnesses who are specifically named in F.I.R. Further, four assailants are also specifically named in F.I.R. Including applicant Abdul Raheem. According to F.I.R. Applicant Abdul Raheem was armed with revolver while Suleman and Dhani Bux were armed with guns and Muhammad Nawaz was empty handed.
4. On the instigation of Muhammad Nawaz, other assailants fired at Ajeebullah and witnesses.
5. Ajeebullah was injured and witnesses succeeded in taking shelter. Assailants then went away.
6. Witnesses went near and found Ajeebullah having died due to injuries. Offences mentioned in F.I.R.
7. Are under sections 302, 307, 114, P.P.C. And 13-D of the Arms Ordinance.
8. Bail plea is urged on several grounds. Firstly that according to F.I.R. Applicant Abdul Raheem and the other two co-accused Suleman and Dhani Bux fired at deceased and the witnesses but only deceased was injured and as per post-mortem report, it appears that deceased sustained gun shot injuries and pellets were recovered from the body. Assertion is not fully correct. Perusal of post-mortem report shows that cause of death as given by police was due to discharge from gun.
9. This is so stated against the column on the first page as to what information was furnished by the Police. Injuries have been described and it is stated that they were caused by fire-arm. In the column for remarks by the Medical Officer it is stated that deceased died due to shock and haemorrhage consequent upon injuries caused by discharge from fire-arm such as gun. There is further endorsement at the bottom of post-mortem report which shows that only one pellet about pea-size was recovered from wound No. 1 and sent to the concerned Police Station. In any case even according to F.I.R. The allegation is that applicant and the two assailants Suleman and co- accused Dhani Bux fired at deceased. It is not stated in F.I.R. As to whose shot hit deceased.
10. Secondly it was argued that from the spot only four empty cartridges have been recovered which could be fired guns and empty bullet has been recovered to show that applicant Abdul Raheem had tired from his revolver. Guns are either single barrel or double barrel and it repeated tiring is made, ejection of empty cartridges would be a necessary consequence. Same would not apply to a revolver, in which there is a chamber to contain at least six bullets. If the revolver is used for tiring shots, necessity to eject bullets would arise only when all the bullets in the chamber have been fired and need is felt to refill it. In these circumstance non-availability of crime bullets is not fatal to the prosecution case.
11. Thirdly it was contended that applicant is falsely involved in the case on account of enmity between the parties. Enmity is mentioned in F.I.R. That there is a dispute between the parties over possession of land and on that account about six years before the incident Ali Nawaz Ulra had murdered Sobho son of Asmat, a roan of complainant party. Mr. Pirzada stated that apart from enmity mentioned in F.I.R. The relations between the parties are strained on account of Elections of local bodies in which applicant Abdul Raheem defeated brother of complainant and is now holding the position of Chairman of Union Council. It is further stated by him that applicant is falsely involved for political reasons by complainant party who are influential persons. This contention does not appear to be tenable for the reason that as against complainant, present applicant Abdul Raheem enjoys better position of influence for the reason that he has won in the Elections of Local Bodies and is now Chairman of Union Council as such would be expected to be on good terms at administrative level then complainant party, who are mere Zamindars. Although for applicant Abdul Raheem it has been persistently argued that he has been falsely involved but plea of alibi has not been raised on his behalf. In any case, it is for the applicant to raise whatever pleas he wants but so far legal position is concerned, it is indisputable that there is difference between bail before arrest and bail after arrest. Bail before arrest is a pure concession of law which can be granted in exceptional cases in which no case is made out against the accused. Several factors are to be considered for grant of bail before arrest such as gravity of offence, role attributed to the accused and quality and quantity of evidence. In any case, bail before arrest is not to be granted for merely asking. It is to be kept in vie that grant of bail before arrest would not unnecessarily interfere with investigation and put prosecution at a disadvantage. Prosecution must be allowed an opportunity to complete its investigation particularly when it is a case in which offence is non-bailable and punishable with death or life imprisonment. Supreme Court has held in the case of Murad Khan v Fazal-e-Subhan and another PLD 1.983 SC 82 that the recent trend of authorities would show that notwithstanding varied facts Supreme Court has always thought it necessary to look for such circumstances which would furnish assumption that Police was motivated on political considerations or other ulterior reasons before granting pre-arrest bail. In the reported case relevant case law since 1949 has been noticed in detail and conclusion had been arrived at that under section 498, Cr.P.C. Pre-arrest bail can be granted on certain conditions when it is shown that arrest is being made for ulterior motives such as humiliation and unjustified harassm ent and the prosecution is motivated to cause irreparable injury to reputation and liberty of the applicant on account of political considerations and mala fides. In the instant case the facts stated above do not show any mala fide on the part of the Police or false implication due to political reasons. It is a murder case in which the law should be allowed to take its natural course.
12. This is not a fit case for grant of pre-arrest bail. Application is, therefore, dismissed.
13. S.G.D.Bail disallowed.