SAJJAD ALI SHAH, J: --Petitioner, who is complainant and father of deceased in the case, seeks leave to appeal against order dated 16-8-1993 of the High Court of Sindh, Karachi whereby bail before arrest is granted to respondent No.2 Sujawal Khan in the murder case and prayer is made for its cancellation.
2. Briefly stated the facts in the background are, as apparent from the order of the trial Court and other relevant papers included in the,paper-book, that family dispute exists between the parties.
Brother of deceased Shafqat Sultan was married to step-sister of respondent No.2 Sujawal Khan and that marriage terminated in divorce. Litigation was pending between the parties arising from question of custody of minor daughter. Earlier complainant had filed F.LR. No. 107/93 at P.S. Jamshed Quarters for offences under sections 452/506/34, P.P.C. And in that case order of pre- arrest bail granted to the accused persons namely (1) Altaf s/o Ayoob, (2) Amar s/o Sarwar and (3)
Babar s/o Sarwar, was recalled on 20-5-1993 by the IInd A.S.J. (East), Karachi and it is mentioned in the order of the Court (page 99 of paper book) that there was commotion outside the Court-room and son of complainant came in stripped of clothes and complained that he was manhandled by accused persons in that case and apprehended danger.
3. Incident in this case took place on 22-5-1993 at 10-30 a.m. In the Verandah of new City Court building at Karachi. Complainant, his son Shafqat and two servants namely Mirza Khan and Jehangir Khan had come to the Court in connection with cancellation of bail mentioned above, when they saw (1) Sujawal s/o Akbar, (2) Ayoob s/o Mahmood, (3) Altaf s/o Ayoob, (4) Rana s/o Sarwar from whom last-named accused was armed with a large pistol. Sensing danger, Shafqat took his father inside chamber of ASJ-II (East) and bolted the door from inside. Four accused persons named above, started firing indiscriminately on the door of the chamber from outside and in the result some bullets passed and entered head of Shafqat through his ear, who started bleeding and died. Outside the Chamber, eye-witnesses including Mirza Khan and Jehangir saw all the for accused firing together and when attempt was made to apprehend, they resisted and fired and in consequence some persons were injured including Mirza Khan. After escape of accused persons, Mirza informed that accused persons had snatched away from him revolver belonging to and licensed in the name of complainant. Such F.LR. No. 99/93 was lodged by complainant at P.S. Risala (South) Karachi at 11-40 a.m. On the same day for offence under sections 302, 307/34, P.P.C.
And section 337 of Qisas and Diyat Ordinance read with section 17(3) of E.H.O.
4. Respondent No.2 Sujawal Khan moved application for bail before arrest in the Court of III Additional Sessions Judge, Karachi, South. Interim bail was granted on 22-7-1993 but the same was cancelled and the application was dismissed vide order dated 29-7-1993 mainly on the ground of lack of jurisdiction. Respondent No.2 approached High Court for bail before arrest under section 498 read with 561-A, Cr.P.C. Interim bail was granted on 3-8-1993, which was confirmed vide order dated 16-8-1993. In the last --mentioned order passed by the High Court, it appears that bail has been granted, impressed by the facts firstly that respondent No.2 is an Advocate and had appeared on behalf of his step-sister Mst. Shamim Akhtar, who is daughter-in-law of complainant in this case and there was litigation between them. Secondly some office-bearers of Karachi Bar Association held Press conference in which false implication of respondent No.2 was alleged and some Advocates had sworn affidavits to that effect. Thirdly in police statements of eye-witnesses Jehangir and Mirza Khan recorded under section 161, Cr.P.C., presence of respondent No.2 at the spot is alleged at the time of incident, but it is not stated specifically that he took active part in the firing though it is alleged that he snatched pistol from Mirza Khan.
5. Now so far the first ground as mentioned in the order of the High Court is concerned, it is not correct that respondent No.2 Sujawal Khan only acted as an Advocate in the case of his step-sister, but relationship between her and her father-in-law, who is complainant in this case and petitioner before us had deteriorated to the extent of enmity and according to the complainant, respondent No.2 was deeply involved in it. It is mentioned in the copy of memorandum of bail application filed in the High Court (page 23 of paper book) that Mst. Shamim Akhtar filed suit for dissolution of marriage, which was decreed ex parte and in that suit respondent No.2 was named as a witness.
Respondent No.2 also claims to have filed Vakalatnama in the criminal case filed by complainant (page 24 of paper book) against relatives of Mst. Shamim Akhtar, although order passed by the Court cancelling bait does not show name of respondent No.2 appearing for accused persons. He.
Appears as Advocate in Family Suit No. 121/93 filed by Shamim Akhtar for maintenance of minor. On 6-12-1992 Anwar Sultan s/o complainant abused respondent No.2, so he filed report at P.S. Artillery Maiden, which was entered in non-cog register. Complainant started campaign that LL.B. Degree of respondent No.2 was forged and the latter filed application before Karachi Bar Association against complainant, who was being summoned by that association in that connection (see page 25 of the paper book). So according to the prosecution, role ascribed to respondent No.2 is not confined to only professional duty of appearance as counsel in the case but there is something more than that.
6. Second ground mentioned in the order of the High Court is that there was press conference asserting false implication of respondent No.2 in the case and some Advocates had sworn affidavits to that effect. In this connection material available on the record shows that incident took place on 22-5-1993 at 10-30 a.m. In the City Court premises and F.LR. Was lodged at P.S. Risala 3 furlongs away at 11-40 a.m. On the same day and the defence plea is that respondent No.2 was not present at the spot at the time of incident but was present at Police Post City Court in the same premises, when firing took place at 10-30 a.m. In which he did not participate. Press conference took place not on 22-5-1993, when incident took place but on 25-5-1993, which was 3 days later. At page 55 of the paper book there is photo copy of press release in which Administration is criticized for creating difficulties in the way of discharge of professional duties of Advocates and in that context it is mentioned that Sujawal Khan Advocate (respondent No.2) has been implicated falsely in a murder case, in which incident took place in the Chamber of Judge and at the relevant time the said Advocate was present at police post in the same premises.
7. In support of assertion of false implication in the case, there are affidavits on the record. At page 33 of the paper book is affidavit of respondento.2 Sujawal Khan, which is sworn on 3rd August 1993, about 2 months and 10 days after the incident. Affidavits of M/s. Mushtaq Ahmad, Salahuddin Khan, Abdul Azeem and Ghulam Mustafa on the record appear to have been sworn on 28-7-1993. This is material in support of defence plea and this Court would not make any comment on the evidence, which is yet to be produced in the trim Court for the simple reason that it is exclusive function and duty of the trial Court to evaluate the evidence and give finding about truthfulness and reliability of evidence and also whether particular individual is falsely implicated or not. Members of the Bar are officers of the Court and are supposed to assist the Court is arriving at just and correct decision. If members of the Bar want to be witnesses in the case they can do so and there appears to be no legal impediment in their way but law laid down is to be followed in letter and spirit. It is for the trial Court to analyse the legal worth of material to be produced by the parties including affidavits.
During the hearing of bail application, the Court cannot make tentative assessment of material, which is P different from and not at equal footing with appraisement of evidence, which is within the ambit of jurisdiction of the trial Court.
8. Third ground mentioned in the order of the High Court for grant of bail is that two eye-witnesses in their police statements have admitted presence of respondent No.2` at the spot but have not said that he participated in the firing. Perusal of police statements fat page 103 of the paper book and onwards) shows that eye-witnesses Mirza Khan and Jehangir Khan have stated in their police statements that accused persons came in the car which was being driven by respondent No.2 and from the co-accused Altaf had Klashnikov and Rana had pistol. After complainant and deceased took refuge in the Chamber of Judge and bolted the door from inside, Sujawal Khan tried to open door and pushed it and then firing was made by Rana and Altaf and when attempt was made to capture, Sujawal Khan resisted and snatched away pistol from Mirza Khan. Under section 161, Cr.P.C.
Statement of a witness is recorded and reduced in writing by the police officer, which is not signed by the witness and its use is restricted as contemplated under section 162, Cr.P.C. To the extent of contradicting that witness in the Court, when he appears for recording his evidence on oath.
Question of sharing of common interest or object is to be decided by the trial Court. On the basis of this material, asp mentioned above, the Court has to make tentative assessment, whether it is a fit case for grant of bail before arrest in a murder case.
9. From legal angle, it can be said that there is material difference) between bail after arrest as contemplated under section 497, Cr.P.C. And bail before arrest under section 498, Cr.P.C. In non- bailable offence, an accused is not to be released on bail by the Court, if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life or ten years. Of course it is also provided that bail can be granted on exceptional grounds of age, infirmity and sex and also if there are sufficient grounds for further inquiry and also on the ground of statutory delay. As against that under section 498, Cr.P.C. High Court or Court of Session can grant bail at any stage and this provision is normally used for bail before arrest. In this provision amendment has been made and by Code of Criminal Procedure (Amendment) Act XII of 1976 section 498-A is inserted imposing restriction on grant of bail before arrest to a person, who does not surrender before the Court or against whom no case is registered. Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime. The Court has to keep in view all these factors in order to maintain balance between both parties and would be cautious not to give undue advantage to one party over the other at the stage of investigation. Of course there is no cavil about the proposition that the Court has power to grant bail before arrest in an appropriate case, if the Court is satisfied that is a fit case for grant of such relief within the limits of law also it stated above.
10. Survey of case-law on the subject shows that in the case of Iqbalur Rahman v. The State (PLD 1974 SC 83) the charge was under section 302, P.P.C. And High Court granted bail on the ground of alibi, which was cancelled by this Court on the ground that it was function of the trial Court to ascertain truth or otherwise of plea of alibi and took exception to the observation of the High Court that plea was supported by respectable witnesses belonging to the provincial Civil Service, which amounted to a fording about credibility of plea of alibi. In the case of Muhammad Hussain v.
Muhammad Anwar Ahmad Khan and others (1975 SCM R 151) the offences were punishable under sections 302, 307, 149 and 148, P.P.C. And bail granted by the High Court on the plea of alibi supported by affidavits of 20 Advocates showing presence of concerned accused 50 miles away at the time of the incident was not cancelled by this Court on the ground that there were no reasons to come to the conclusion that High Court acted unreasonably or perversely. Third case in the line is Choudhary Muhammad Shaft v. Choudhary Muhammad Anwar Samma and another (1975 SCM R 219) in which it was held by this Court that the case of Iqbalur Rahman (supra) did not spell out absolute bar and plea of alibi was rightly considered by the High Court and no exception was taken to the grant of bail by the High Court on the ground that affidavits were filed by 24 members of the Provincial Assembly asserting that petitioner was in the Assembly at Lahore at the relevant time, when incident took place at Gujrat.
11. The following cases relate' to bail before arrest. In Choudhary Zahoor Illaht v. The State (1981 SCM R 935) anticipatory bail was granted on the grounds that the name of petitioner did not appear in F.LR., confession was recorded after 12 days of incident and statements of other two witnesses were recorded after 11 days and lastly petitioner was cited in a series of criminal cases but no proceedings were taken against him till filing of petition in that case. In such circumstances it was held that the case required further inquiry- In the case of Ali Muhammad v. Yamin and another (1981 SCM R 1139) section 498-A, Cr.P.C. Was examined and it was held that grant of pre- arrest bail is not a rule and petitioner must show apprehension of his arrest on account of ulterior motives. Bail plea was rejected in view of allegations in F.LR. And result of post-mortem examination. In the case of Murad Khan v. Faze)-e-Subhan (PLD 1983 SC 82) this Court examined import of section 498-A, Cr.P.C. With reference to case-law on the subject and it was held that for grant of pre-arrest bail, it is compulsory for the petitioner to satisfy the Court that he was being arrested for ulterior motives such as humiliation and unjustified harassment with the intention of causing injury to his reputation and for political considerations and in other words mala fides of intended arrest have to be shown-
12. In the case of Mohib Raziq v. Shah Muhammad and another (1983. SCMR 113(1) charge was of murder and High Court granted bail before arrest on the ground that two eye-witnesses named in F.I.R. Had not come forward to support the case. This Court cancelled the bail as Shah Muhammad was named in F.I.R. As one of the assailants, who had fired and injured the deceased, motive was stated in F.I.R. And fire-arm injuries were supported by post--mortem report. Deceased himself dictated F.I,R. Which could be used as dying declaration. Police had failed to record 161, CrY.C.
Statements of eye--witnesses. This Court her observed that interference was called for as High Court failed to exercise discretion in accordance with object or purpose of law regulating grant of pre-arrest bail.
13. In the context of what . Is stated above, reference to one more judgment of this Court is necessary. In the case of Mst. Bashiran Bibi v. Nisar Ahmad Khan and others (PLD 199(1 SC 83) provisions of section 497, Cr.P.C. Were examined in detail in order to ascertain the scope of further inquiry and it was held that normally this Court does not interfere with orders of the High Court relating to bail matters unless either a provision of law is misconstrued or wrongly applied or the decision is contrary to the principles laid down by the Supreme Court, then it is the Constitutional obligation of this Court to set the matter right. It was further held that mere filing of affidavits by Advocates would not attract the expression "further inquiry" nor would it amount to two versions and evidentiary value of such evidence should be left to be determined by the trial Court. In that case complainant lady was stripped naked, beaten and made to dance by accused persons, who were granted bail on the ground that it was case of further inquiry. During the proceedings offer was made to swear about innocence of accused on Holy Qur'an and in that connection reference was made to the affidavits of certain Advocates. It was f held by this Court that High Court was not right in permitting one accused to take oath in the mosque with regard to the guilt or innocence of all accused persons. It is thus clear that principles of law laid down are same, which are to be applied but since facts of any two criminal cases me not the same and each case is to be decided or for that matter, bail matter in that case is to be heard p and decided keeping in view peculiar facts of that case and for that reason the conclusions may vary. The most important criterion is that it is the mind of the Corm which is to be satisfied that the case under its consideration is a fit case or not for grant of bail in line with guidelines covering legal requirement
14. In the instant case name of respondent No.2 appears in F.I.R. Which is lodged promptly without any delay and role is assigned to him that he participated in firing. Eye-witnesses are yet to be examined on oath in the Court for recording evidence. In their 161, Cr.P.C. Statements they have not E absolved respondent No.2, nor they have said that he was not present. For tentative assessment it would suffice to say that even plea of alibi does not assert that he was not physically present at the spot or near about it at the relevant time. Contention raised on behalf of the complainant is worth consideration that respondent No.2 surrendered before the Sessions Court and applied for bail before arrest after nearly two months. It is alleged that respondent No.2 snatched and carried away pistol from Mirza Khan. In such circumstances grant of bail before arrest in a case with murder charge is not justified on legal grounds and is not in accord with guidelines reflected in the case-law mentioned above. For reasons aforementioned leave is granted 'and the petition is converted into appeal, with is allowed and in the result impugned order of bail is set aside. Let the law take its own course. Comments' made above while making tentative assessment of material are not intended to influence the mind of the trial Court one way or the other and it is open to that Court to act strictly according to law, if any steps are taken to seek relief within the bounds of law after arrest or at the time of appeasement of evidence.