' The petitioners seek pre-arrest bail in a case revislered against them and ' others vide F.I.R. No, 192/89 dated 14-7-1989 for offence under sections 307, 148 and 149, P.P.C. At Police Station Baseerpur, district Okara. The petitioners were allowed interim pre-arrest bail vide the order dated 22-8-1989 and the matter has now come up for final hearing.
2. The petitioner No,1 exchanged his land with the land belonging to Mst. Khairan Bibi, widow of Muhammad Hussain, a co-sharer of the complainant, and allegedly obtained physical possession of the land from Mst. Khairan Bibi. This was deeply resented by the complainant, who demanded restoration of the land from petitioner No,1 who did not agree to the same.
3. On 14-7-1989, Abdul Aziz, complainat, got the case registered against the petitioners and three others, namely, Imtiaz Ahmad, Nazar Muhammad and Muhammad Amin, on the allegation that they abused him and told him to stop the tube-well, on the ground that they had purchased the land from Mst. Khairan. Thereupon, he also abused in retaliation and then Ghulam Muhammad, petitioner, raised a lalkara that he he killed. Ghulam Muhammad, petitioner, fired at Muhammad Hussain, injuring him on the shoulder. The second shot was fired by Muhammad Abdullah, petitioner No,2 (named as Dullah in the F.I.R.), hitting Ali Gauhar on the right shoulder. The other co- accused of the petitioners are alleged to have fired with their respective weapons.
4. The Investigating Officer appeared in the Court on 27-8-1989 and stated' that according to his investigation the petitioners were in possession of the disputed land and that the complainant had committed aggression. He prepared the final report under section 173 of the Cr.P.C. On 1-9-1989. It is clearly mentioned therein that the complainant party had resorted to firing when the accused persons were in their own house and that they fired hack from their own house. It is further mentioned that Ghulam Muhammad, petitioner, had got the land in exchange which was duly incorporated in the roznamcha of Halqa Patwari and that the complainant party had fired at the house of the accused persons to support the stay order obtained by them. The disputed land is situated in front of the house of the accused persons and that at the time of firing, there was a distance of 50/60 yards between the parties. Even today, the Investigating Officer stated that the entries in the roznamcha regarding delivery of possession to the accused persons were correct. It is clearly mentioned in the roznamcha dated 21-6-1989 that after the exchange, the parties have also changed their respective possession on the spot. The learned counsel for the petitioner urged that, prima facie, the complainant party had committed aggression and the petitioners committed no offence in retaliating for the protection of their person and property. He further submitted that the complainant party had got the case registered against the petitioners with mala fide intentions and ulterior motives for causing harassment and humiliation to them. He further submitted that despite the finding that the complainant party had committed aggression, the police was still out to arrest the petitioners. Hence, the petitioners' arrest would be mala fide. He also pointed out that the petitioners' counter-version requires further probe and investigation and at this stage, the petitioners are entitled to the grant of bail as a matter of right. On the other hand, the learned counsel for the State and the complainant seriously opposed the grant of pre-arrest bail. The case was argued at length by the learned counsel for the complainant, who urged that the complainant was in possession of the disputed land as co-sharer and that possession had not been changed after the exchange of land between Mst. Khairan and Ghulam Muhammad, petitioner No,1. He pointed out that the exchange mutation was merely entered but not yet attested. He further urged that Mst. Khairan had sold the land to Abdul Aziz, complainant, who filed a suit on 21-6-1989 and obtained a status quo order, which was placed before the Collector and for that reason, the mutation was not attested. He also pointed out that the khasra girdawari shows the complainant's possession over the disputed land. He contended that the petitioners did not deserve the extra- ordinary concession of pre-arrest bail. He placed reliance on Ali Muhammad v. Yamin etc. 1981 SCMR 1139, Zia-ul-Hasan v. State PLD 1984 SC 192, Abdul Sattar v. The State 1989 P Cr. L J 77, Faiz Ahmad v. The State 1989 P Cr. L J 286 and Total etc. v. The State 1989 P Cr. L J 615.
5. After hearing the learned counsel for the parties and perusing the record, I feel that the petitioners have succeeded in making out a case for grant of pre-arrest bail. The intricacies of the title in the disputed land may well be left to be decided by a Civil Court of competent jurisdiction.
Keeping in view the investigation conducted by the Police, it is evident that Ghulam Muhammad, petitioner, had obtained possession of the disputed land on 21-6-1989 when the exchange mutation was entered in the daily diary by the Patwari. There is nothing to prevent the parties to change their respective possessions before the attestation of the mutation. It appears that after obtaining the stay order from the Civil Court, the complainant party committed aggression to oust the petitioners from the disputed land to strengthen their claim in the Civil Court that they were in possession of the land. The disputed land is situated just in front of the house of Ghulam Muhammad, petitioner No,1. The complainant along with others came armed from a distance of 200/300 Karams when Ghulam Muhammad petitioner, was present in his house. The complainant resorted to firing at the petitioners' house and apparently, they had the right to retaliate and act in the exercise of their right to protect their person and property. The Investigating Officer stated in unambiguous words in the Court on 27-8-1989 and even today that petitioner No,1 was in possession of the disputed land. However, he declared Niaz Ahmad and Haji Muhammad Amin to he innocent in the light of the views of the arbitrators appointed by the parties. He wants to arrest the petitioners notwithstanding his own finding that the petitioners had acted in self-defence.
Obviously, the complainant has grouse against the petitioners and wants them to be arrested with mala fide intentions and ulterior motives. Surprisingly, the Investigating Officer despite his own finding that the petitioners were in possession of the land and that they had fired back when the complainant party had resorted to firing at their house still intends to arrest the petitioners.
Obviously, the petitioners' arrest would be mala fide in the circumstances of the case. In Ali Muhammad v. Yam in and another 1981 SCMR 1139 bail before arrest was refused because there was nothing to show that the arrest was going to be made on account of ulterior motives. In Zia-ul- Hassan v. The State PLD 1984 SC 192, no fact was mentioned by the petitioner to suggest that his arrest would be mala fide. Hence, the Supreme Court was pleased to hold that the Court had no jurisdiction to grant bail before arrest unless all the conditions laid down for bail before arrest by the superior Courts from time to time were satisfied, the most essential of them being that the intended arrest would be tainted with mala tides. The other judgments cited by the learned counsel apart from referring to the principles governing anticipatory hail proceed on their peculiar facts and need not be discussed. In the present case, as held above, the prosecution appears to have been launched with mala fide intentions to rope in the petitioners, who have apparently acted in the exercise of their right of self-defence and defence of their property.
6. For the foregoing reasons, I confirm the interim to the petitioners vide order dated 22-8-1989. The police file be returned to the Investigating Officer.
Interim hail confirmed.