Applicant Haji Taj Muhammad who is wanted in Crime No.31 of 1991, Jamshed Quarters P.S. Under section 302/120-B, P.P.C. Apprehending hiss arrest surrendered before Sessions Judge (East), Karachi, seeking pre-arrest bail, but without success, He has, therefore, filed the present application under section 498, Cr.P.C., for anticipatory bail. The applicant was allowed interim pre-arrest bail on 25-5-1992 in the sum of Rs.1,00,000 (Rs. One lac) to the satisfaction of Nazir of this Court and he continues to be on bail till this day.
2. On 26-1-1991 at about 8 a.m. Deceased Muhammad Niaz had taken his children to Amina School, situated at Patel Para, Karachi, when two young persons came there on a motor-cycle. One of them who was wearing shirt and trousers fired at deceased Niaz Muhammad who sustained injuries. Both the culprits then slipped away on the same motor-cycle. Besides complainant Muhammad Fayyaz the incident was witnessed by Ali Zaman. Deceased Niaz Muhammad was taken to Abbasi Shaheed Hospital, Karachi where he was pronounced dead. Fateh Muhammad S.I.P. Recorded 154, Cr.P.C. Statement of complainant Muhammad Fayyaz, which was subsequently incorporated in 154, Cr.P.C. Book maintained at the police station. The investigation then changed hands. During the course of investigation the applicant was arrested, but he was released on bail by police under subsection (2) of section 497, Cr.P.C. The police submitted incomplete charge- sheet against co-accused Sajid Ali Shah, a Police Constable, in which co-accused Muhammad Maroof and Haji Qasim Khan were shown as absconders, while the present applicant was shown as an accused on bail. On 17-3-1992 the police submitted final report in which the present applicant was shown as absconder, which necessitated him to seek bail before arrest.
3. I have heard Mr. Muhammad Saleh G. Memon, learned counsel for applicant, Mr. Sarfraz Khan Tanoli, learned counsel for complainant, and Mr. Abdul Hakeem Bijarani, learned AA.-G. For State.
The learned A.A: G. Has opposed the bail application.
4. Admittedly the name of the applicant is not disclosed in the F.I.R. There is background of enmity between the parties and deceased Niaz Muhammad was facing a case under section 302, P.P.C., in which Saeed son of present applicant was murdered. There is also no dispute that the applicant who was arrested during the course of investigation was released on bail under subsection (2) of section 497, Cr.P.C. By the police meaning thereby that the case against him needed further inquiry. Thus the action of the concerned police showing the applicant as absconder in the charge-sheet appears to be mala fide.
5. The case of the prosecution against the applicant rests mainly on the statements of Mushtaque Ahmad and Jumo Khan recorded on 13-5-1991 after about four months of the incident in which they have implicated the present applicant for hatching the conspiracy of the murder of Niaz Muhammad. Out of these witnesses one, namely, Jumo Khan was nominated as an accused in the murder case of Saeed son of applicant (Crime No.29 of 1990) Baldia Town P.S., under section 147/148/302/149, P.P.C. It was, therefore, not possible for him to be present in the house of applicant at the time of alleged conspiracy. There is also nothing on record to show as to why both these witnesses kept quiet for such a long time. In my view the applicant was implicated due to suspicion, because deceased Niaz Muhammad was facing the case of the murder of his son. The suspicion however, strong it may, cannot be taken as substitute of legal evidence.
6. The power to grant pre-arrest bail, though of an extraordinary nature, is meant to be exercised in appropriate cases, and in my view it is one of those cases where the discretion may be exercised in favour of the accused to save him from unnecessary harassment. I would, therefore, confirm the interim bail granted to applicant on 25-5-1992 on the same terms and conditions. The applicant will associate himself with the investigation of this case and he will appear before the Investigating Officer and the Court, as and when required.
7. By a short order, dated 7-6-1992 I had allowed pre-arrest bail to applicant and these are the reasons for the said order.
N.H.Q./T-142/K