KAMAL MANSUR ALAM, J. - By this application the applicant seeks pre-arrest bail in Crime No. 28/96 of Police Station Drakhan registered at the instance of complainant Ghulam Nabi. Complainant's report was initially entered in the Roznamcha of the Police Station on 17.4.1996 and subsequently on receipt of medical report about the injuries sustained by injured Muhammad Ramzan, aforesaid FIR No. 28/96 was registered incorporating complainant's said report as also the statement of injured Muhammad Ramzan.
2. According to the complainant's report excavation of watercourse over their land for the supply of water to the lands of Munawar Ali Isani had annoyed the applicant. On 17.4.1996 the complainant, his brother Abdul Wahid and one Shahmir were going to Rato-Regulator and on reaching near the place at about 9.30 in the morning, they saw that applicant inflicting lathi blows to his brother Muhammad Ramzan. On seeing the complainant's party coming the applicant went away.
Muhammad Ramzan had sustained injuries and the complainant alongwith others brought him to the Police Station, Tarkhan, where complainant's report was entered in the daily diary and the injured was referred to hospital. Later, on 8.5.1996 injured Muhammad Ramzan approached the police station, produced the Medical Certificate showing fracture of left arm and recorded the statement. As mentioned above, on the basis of the medical report, the said FIR was registered incorporating complainant's initial report and the statement of the injured.
3. The applicant immediately,, applied to the Sessions Court, Shikarpur for pre-arrest bail and interim bail was granted to him on 9.5.1996 but his application was ultimately dismissed on 20.8.1996, whereupon the applicants has approached this Court.
4. Concession of pre-arrest bail is sought on the ground that the applicant is a respectable Zamindar of Shikarpur and due to family dispute and enmity with his brother Munawar Ali Issani, who is an influential Zamindar of the area, the applicant has been falsely involved in the present case so as to humiliate and insult him and to coerce him to settle the dispute on the terms of his brother. It is claimed that on the date of alleged incident, the applicant was admitted in Jinnah Hospital, Karachi and to this effect certificate has been produced before the Sessions Court, but, later, it is alleged, his brother Munawar Ali Isani manipulate a conflicting report from that hospital.
5. The application is opposed by Mr. Khawaja Navid Ahmad and Mr. Suleman Habibullah, the learned counsel appearing for the complainant and the State respectively on several grounds. It is submitted that the applicant having been named in the FIR, and active role of inflicting lathi blows to the injured assigned to him no case for the grant of bail to him, much less pre-arrest bail, is made out. It is next contended that the rules governing the grant of pre-arrest bail are different from those applicable to bail after arrest. Apart from the existence of conditions normally required for the grant of bail after arrest, the for most condition for the grant of anticipatory bail is the existence of sufficient material to show ulterior motive on the part of police or the adversaries of the accused, to cause harassm ent or humiliation of the petitioner. Reference is made to the cases of Murad Khan v. Fazal-e-Subhan and another (PLD 1983 S.C. 82) and Haji Gamun v. Muhammad Afzal and 2 others (PLD 1991 Peshawar 54). In the former case the Hon'able Judges after reviewing a number of cases on the point observed: "As already observed, it has been reiterated by this Court in earlier noted cases that the condition of arrest being for ulterior motives, for example, that of humiliation and unjustified harassment is a necessary condition for pre-arrest bail.
In the latter case the view taken was that, grant of pre-arrest bail was not the rule in criminal cases and that exercise of such power should be confined to cases where not only ground for grant of bail on merits is made out but also there should be sufficient material to show that there were ulterior motives either on the part of the police or the adversaries to involve the accused so as to humiliate and harass him.
6. The bail is also opposed on the ground that in order to gain advantage and mislead the Court the applicant took the plea that on the day of the incident he was admitted in Jinnah Hospital Karachi, which plea stood falsified from the certificate issued by the hospital. It is, therefore, submitted that the applicant having not come to the Court with clean hands was not entitled to the discretionary relief of anticipatory bail. Support is sought from the cases of Shahadat Ali v.
Mubarak Shah and another (PLD 1986 S.C:347), and Muhammad Ayub v. Mst. Nasim Akhtar and another (1984 P.Cr.L.J. 160).
7. The facts of the first case were that, the respondent in that case . Applied for pre-arrest bail before the Additional Sessions Judge, Faisalabad, who without granting interim bail before arrest gave notice to the State. The respondent then, on the next day, filed another similar application before another Additional Sessions Judge stating therein that he had not filed any other application. On his second application he was granted interim bail before arrest. Later before the High Court too he made no mention of the first bail application. On the above facts the Supreme Court cancelled the pre-arrest to the respondents. The relevant observation is as follows:- "After hearing the learned counsel for the appellant and the respondents, we consider that respondent No. 1 has been guilty of suppression of material facts for which no plausible explanation is forthcoming. Such misrepresentation or suppression is likely to result is grave miscarriage of justice apart from its being open to great abuse by the parties. A person indulging in it cannot be allowed to reap its benefits or to enjoy its results".
In the second case too the Court found that the accused had made misrepresentation to mislead the Courts and held that: "There is no doubt that the respondent deliberately tried to mislead all the Courts by her deliberate misrepresentation of the facts. She therefore, disentitled herself to this discretionary relief on this count too."
8. There can be no cavil with the propositions that the rules governing the grant of pre-arrest bail are different from those applicable to bail after arrest and that an accused not coming to the Court with clean hands is not entitled to the discretionary relief of pre-arrest bail. Applicant's case would, therefore, be examined keeping in view the rules laid down by the superior Courts for the grant of pre-arrest bail.
9. As mentioned earlier applicant's plea is that he has been falsely' involved in the case by his brother Munawar Ali Isani with whom his relations are very strained. In this regard reference has been made to some pending suits involving the applicant, Munawar Ali Isani and their other family members. It is alleged that at the behest of one Mr. Ghazanfar Isani, a former DIG Police and one Mr. Iftikhar Ali Isani a serving DIG Police, the police is supporting the said Munawar Ali Isani against the applicant and in order to humiliate and harass the applicant have been making efforts to arrest him. Apart from these allegations, strained relations between the applicant and his brother Munawar Ali Isani, as also friendly relations between Munawar Ali and complainant's party is apparent from the complainant's allegations in the FIR, where he has attributed the incident to the annoyance caused to the applicant by reason of the excavation of watercourse through complainant's land to that of Munawar Ali Isani.
10. Complainant's report of the incident was initially entered by the police on the Roznamcha on 17.4.1996 and injured Muhammad Ramzan was referred to the doctor on the same date. After an unexplained delay of 18 days the said Muhammad Ramzan appeared at the police station with a medical certificate showing fracture of left arm and recorded his statement, which alongwith the complainant's initial report was incorporated in the FIR. In his statement Muhammad Ramzan made some material deviation from the initial report of the complainant. Firstly, he completely omitted reference to Munawar Ali Isani's hands and instead attributed the incident to his refusal to sel his land to the applicant. Secondly, while the complainant had named the applicant as the only accused, Muhammad Ramzan introduced the name of co-accused Muhammad Qashim, and thirdly, he shifted the place of incident from Rato-Regulator to his lands. It is significant that when the initial report was lodged by the complainant, Muhammad Ramzan was also present with him at the police station, as such, it appears that these deviations have been made with purpose.
11. As regards the allegation about applicant's plea of alibi being false it is true that the Registrar of Jinnah Hospital in his second certificate denied applicant's admission in the hospital and issuance of discharge certificate to him, however, in the certificate allegedly issued earlier the Registrar had confirmed applicant's admission in the hospital for treatment. The second certificate is attacked by the applicant on the ground that this was the result of manoeuvering of Munawar Ali Isani who arranged the certificate through manipulation of hospital record and later got it produced before the trial Court through one Shaukat Ali, an employee of the Jinnah Hospital, who was taken by Munawar Ali specially from Karachi for the purpose. To substantiate his claim, list of the passengers travelling on PIA Plight from Karachi to Moenjodaro on 2.7.1996 and those travelling from Sukkur to Karachi on 3.7.1996 has been filed to show that Munawar Ali Isani and the said Shaukat Ali travelled together from Karachi to Moenjodaro on 2.7.1996 and again from Sukkur to Karachi on 3.7.1996.
12. In the face of such conflicting allegations and documents it would neither be appropriate nor fair to express any opinion on applicant's claim of being hospitalised on the day of incident. This plea will have to be evaluated on evidence. However, from the material on record I am satisfied that there is genuine apprehension of applicant's arrest in the case and also that the chances of applicant having been involved in the case due to enmity or with ulterior motives so as to harass and humiliate him by unjustified arrest cannot be discarded. There is no dispute that on the basis of the nature of the alleged injuries sustained by the Muhammad Ramzan the offence would fall under section 337-E(v) read with section 337-F (v) PPC carrying maximum punishment of five years imprisonment.
13. Having regard to all the circumstances in my view a case for grant of pre-arrest bail to the applicant has been made out. As such, I allow his application and confirm the interim pre-arrest bail already granted to the applicant, on the same terms.
Observations made in this order are only tentative in nature and will have no bearing on the merits of the case.