' Applicants Dr. Niaz Amer and his brother Zahid Hussain apprehending their arrest in Crime No, 16 of 1989, Latifabad Police Station 'A' Section, under section 302/34, P.P.C. Have approached this Court for the grant of anticipatory bail. Both of them were granted interim bail on 14-2-1989, and they continued to be on bail till 16-2-1989, when at the conclusion of arguments, by a short order their bail application was dismissed and the order dated 14-2-1989, by which interim bail was granted to them was recalled.
2. On 6-2-1989 at 11 a.m., complainant Syed Abid Ali Rizvi lodged F.I.R. In this crime, which runs as follows:- "The report is that I am Councillor of Ward 54, Latifahad. Yesterday at 7 p.m. I was sitting in the house of my sister which is just in front of my house. My nephew Faisal after taking bath and changing his clothes, was going out. I asked him as to where he was going and that he should return early. He informed me that he has just received a call from Dr. Niaz of Asim Clinic, who is known to him and who has perhaps called him for some work. He then went away and I went to my office. After about 20 minutes some body informed at my office that my nephew has been shot in Asim Clinic. I rushed to the scene, but there I was informed that the police and some neighbours had removed him to Civil Hospital. I went there. Amongst others who were present there I met Muzaffar All and Muhammad Aslam of my Ward who informed me that my nephew has died and they had brought him alongwith police. They informed me that within their sight Dr. Niaz and his brother whose name was not known to them had murdered Faisal. They said that first Dr. Niaz fired a shot which hit him on his neck. Brother of Dr. Niaz then went and saw Faisal and said that he was still alive and if he survives he will depose against them. Then brother of Dr. Niaz fired another shot.
Faisal breathed his last after a short while in their presence. I then went to police station to lodge the report, but found that cross-firing was going on at the Thana and the mob had surrounded it. I also learnt that one Head Constable has been murdered. I, therefore, went back to Civil Hospital. I got the dead body and after burial, have now come to lodge report. The matter may he investigated."
3. On 5-2-1989, four reports were registered at the same police station.
Crime No, 12 of 1989 was registered at the instance of applicant Dr. Niaz Amer for the offence under sections 148 - 307/149, P.P.C. Manzoor Hussain S.H.O. Lodged F.I.R. In Crime No, 13 of 1989, relating to murder of H.C. Bakhtawar, who was killed while coming to police station. Crime No,14 of 1989 was registered at the instance of Riazuddin Shah S.I. Against Muhammad Wasil, who was allegedly arrested from the bathroom of Asim Clinic and from his possession one unlicensed mouser was recovered. Crime No, 15 of 1989, was again registered at the instance of Manzoor Hussain S.H.O.
Against the members of mob who had surrounded the police station and had resorted to firing.
4. Since the main grounds on which the applicants have pressed the bail application arc based on F.I.R. In Crime No, 12 of 1989, lodged by applicant Dr. Niaz Amer, I cannot do better than quoting the translation of F.1.R. In extenso:- "The report is that I have got my clinic by name of Asim Clinic in Siddiquc Plaza, Unit No,8, where I and my wife Lady Doctor Shamim Ansari, Dr. A. Arbab, Lady Doctor Nasim, Compounder Ghulam Rasool Muhajir and other members of staff work there. Today i,e, on 5-2-1989, I alongwith the abovementioned persons were available in the clinic when at 10 a.m. One Gordandas, who resides with Mst. Zahida in 0 Block came to me and complained that my cook Ayub has burnt the cover of window grill of their house from outside and he was accompanied by one Aziz, who resides in B-23, Siddique Plaza. He further told me to ask Ayub not to trouble Zahida. I made inquiries from my cook Ayub who pleaded complete ignorance, but still I reprimanded him and made him apologise from Mst. Zahida. However, Aziz went annoyed issuing me threats that they will see us. Today i,e, on 5-2- 1989 at 19-20 hours I, my wife Lady Doctor Shameem Ansari, other members of staff and patients by name Nasir, Abdul Wadood and others were available in the hospital when six masked men, out of whom five were armed with kalashnikov and one with mouser, entered the hospital from the two back doors. Out of them four armed with Kalashnikov came to my portion of the clinic, while the remaining two with kalashnikov and mouser went to the portion of clinic where my wife Lady Doctor used to sit. They opened fire. One of the black masked-men fired at me by means of kalashnikov, but I concealed myself under the table. All the six miscreants continued harassing me, my staff and the patients.
Amongst the patients there was one patient who was brought for first aid by the police as there was obstruction in his urinal canal and, therefore, was unable to pass urine. The police guard had asked me to give him first aid, and thereafter he would be shifted to Civil Hospital. On my cries and fire reports police guard came to me. The culprits tired at me and the policemen. The culprits who had gone to ladies clinic also fired at us. We managed to come out of my office and reached in between two doors. The policeman fired in self-defence. In cross-firing the masked-man who had fired at us fell down on the ground and the kalashnikov which he was handling also fell on the ground. On seeing this, the four culprits decamped through the two doors. The remaining culprit who was armed with mouser was pushed into the bath room by my wife with the help of other members of staff and closed the door. The culprit, who had fallen on the ground, had a black mask and on removing the same he was identified as Faisal Mashhadi, resident of Unit No,8, Latifabad. In the meanwhile the mobile police of Latifabad, A-Section arrived on hearing the fire-arm reports.
S.I.P. Riazuddin Shah alongwith his subordinate staff was in the vehicle. We narrated the facts. We showed him the dead body and the kalashnikov. The culprit who was in the bath room was also produced before him. He having a mask of handkerchief and a P-cap. The SIP. Got his mask removed and inquired about his name and address. He gave his name as Muhammad Wasil son of Shah Muhammad, resident of near Usmania Masjid, Unit No,9, Latifabad. S.I.P. Riazuddin Shah secured a mouser, details of which arc given below from him. The S.I.P. Alongwith his staff and my staff are at the Wardat. I have come to lodge the report. The abovementioncd culprits in prosecution of their common object have fired at me, my wife, the members of my staff and the policemen with intent to kill. The matter may be investigated."
5. I have heard Mr. Aftab Ahmad Akhund, learned counsel for applicants and Mr. Abdul Hafcez Lakho, learned A.-G. On behalf of State. I have also heard Mr. I.A. Hashmi, learned counsel for complainant Syed Abid Ali. Mr. Akhund referred to several points, but eventually confined his arguments in the main to three contentions, viz.-- That the F.I.R. Lodged by applicant Dr. Niaz Amer is first in point of time and is fully corroborated by the F.I.R. Lodged by Riazuddin Shah S.I.P. (Crime No, 14 of 1989), and the arrest of Muhammad Wasil with mouser from the bath room of Asim Clinic.
(ii) That the fact that deceased Faisal Mashhadi received bullet injuries during cross-firing between the culprits and the police is established by thc firing of mob of persons at the police station (Crime No, 15 of 1989) and killing of H.C. Bakhtawar (Crime No, 13 of 1989).
(iii) That the intended arrest of the applicants is mala fide both on the part of police, as well as the complainant party, and it is actuated by oblique motives.
6. The fact that deceased Faisal Mashhadi died in Asim Clinic is not in controversy. According to the F.I.R. Lodged by Sycd Ahid Rizvi (Crime No, 16 di 1989), deceased Faisal Mashhadi was called by applicant Dr. Niaz Amer and then he was brutally murdered in presence of Muzaffar Ali and Muhammad Aslam by both the applicants. The case developed by Dr. Niaz Amer in (Crime No, 12 of 1989), is to the effect that deceased Faisal Mashhadi armed with kalashnikov 'A alongwith five others, four armed with kalashnikovs and one with mouser had attacked him in his clinic, where there was exchange of firing between police constables, who had brought one prisoner who was ill, and the culprits, in which Faisal Mashhadi, who was wearing a mask died and one other person by name Muhammad Wasil, who was armed with a mouser, was apprehended and the remaining four culprits, who too were armed with kalashnikovs, decamped. The Mashirnama of scene of occurrence (Wardat) prepared by Riazuddin Shah S.I.P. Immediately after the incident, however, shows that applicant Dr. Niaz Amer was standing armed with kalashnikov when police party reached to Asim Clinic. The inventory prepared by Riazuddin Shah S.I.P. Further shows that only three empties were secured from the spot, although there was allegation of indiscriminate firing by the culprits. Admittedly none from the members of staff and patients, who were present in the clinic were injured. Surprisingly the culprit, who subsequently gave his name as Muhammad Wasil and who was armed with a mouser, was pushed into the bath room by Lady Doctor Shamim Ansari, wife of applicant Dr. Niaz Amer with the help of other without any resistance. The statements of P.C.
Arshad, P.C. Akbar Hussain and P.C. Muhammad Khan recorded on 6-2-1989, make a clear mention that there was no firing by the police 1C party present in the clinic with the patient. Therefore, it does not require much of calculation how to multiply 2 by 2.
7. The purpose of an application for hail before arrest is to avoid the humiliation of being arrested by the police. It was so held in Muhammad Aslam v. The State reported in PLD 1974 Lah. 493 in the following words:- "The very purpose of an application for hail before arrest is to avoid humiliation of being arrested by the police. Grant of hail before arrest is rare, but Courts do grant hail before arrest where it is felt that the petitioner has probably, been falsely involved in a case and is likely to suffer irreparable injury to his dignity, respect and reputation."
8. The pre-arrest bail is granted mainly in order to relieve a person from being disgraced by trumped up charges. It will, however, he highly improper to extend this extraordinary concession to accused involved in a murder, where there is prima facie evidence against him, thereby depriving the Investigating Agency of all reasonable opportunity of finding out the truth. The cases reported as Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82, Zia-ul-Hassan v. The State PLD 1984 SC 192, Jamaluddin v. The State 1985 SCMR 1949, Kaila and 3 others v. The State 1986 P Cr. L J 90, Fatch Muhammad alias Fatehuddin v. The State 1985 P Cr. L J 87, and Abbas and 2 others v. The State 1988 P Cr. L J 248 are leading cases on this subject. In Zia-ul-Hassan's case the principles governing the exercise of discretion for the grant of 'pre-arrest bail' and 'bail after arrest' were distinguished in the following words:- "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 them all being that the intended arrest would be tainted with mala fides which must be specifically stated. It is in this context also that the other condition of irreparable loss is to be viewed..."
9. Mr. Aftab Ahmad Akhund, learned counsel for the applicants, with whom Mr. Abdul Hafiz Lakho, learned A.-G. Has agreed, has contended that there are two versions with regard to the same incident and it is yet to be determined at the time of trial, as to which one is correct; till such time the applicants are entitled to bail. This argument, however, is effectively answered by the Supreme Court of Pakistan in Muhammad Sadique v. Sadique and others reported in PLD 1985 SC 182, wherein the scope and meaning of phrase 'further inquiry' was examined and answered.
10. The applicants have alleged mala fides against the police and the complainant party. There is, however, nothing on record to even suggest that complainant Syed Abid Ali had any reason to rope the applicants falsely in this case. A close examination of all the F.I.Rs, registered on 5-2-1989, reveals that a deliberate attempt was made on the part of S.H.O. Latifabad P.S. And his subordinate officials to help Dr. Niaz Amer, which is evident from the following extracts of reports. In Crime No, 13 of 1989, Manzoor Hussain S.H.O., recorded as under:- "The murder of this Head Constable has taken place in retaliation of Crime No, 12 of 1989 under section 148 - 307/149, P.P.C."
While recording the F.I.R., of Crime No, 14 of 1989, under section 13-D of Arms Ordinance, 1965, the entire story as unfolded by applicant Dr. Niaz Amer in Crime No,12 of 1989, was introduced, although there was no occasion E for it. Likewise a deliberate attempt was made to oblige Dr. Niaz Amer while recording F.I.R. In Crime No, 15 of 1989, in the following words:- "This firing has been made by the people of Latifabad in retaliation to the incident which happened 2 -3 hours before in Asim Clinic Siddique Plaza where six masked men duly armed had attacked Asim Clinic and had fired at policemen also who had taken an accused for first aid, and there one Faisal Mashhadi was hit by bullet and had died."
It may be recalled that all the police officials who were examined in Crime No, 12 of 1989, have disowned this position. In this view of the matter the F allegation of mala fides against the police has got no foundation.
11. There are reasonable grounds to believe that both the applicants are involved in this case. The bail application has got no merits and is dismissed accordingly.