' The applicant who is complainant in Crime No,92/1995 registered at Police Station Pangrio, District Badin, seeks an order to cancel bail before arrest granted to respondents by learned Sessions Judge, Badin vide order, dated 5-12-1995.
2. Respondents alongwith others are charged with the commission of murder of deceased Jan Muhammad and causing injuries by hatchet as well as Lathi to witnesses Ghulam Muhammad, Bachayo and Ghulam Qadir are involved in the aforesaid crime. It is the case of the prosecution that on 15-11-1995 at about 11-00 a.m. Respondents along with co-accused committed criminal trespass in the sugarcane cultivation of the complainant and his brother deceased Jan Muhammad. It is said that dispute over the land was going on between the parties for the last two years and litigation before the Courts was going on. It is said that respondent Allah Dino who was armed with a shot gun fired at Jan Muhammad who also fired in his self-defence. It is said that on instigation of respondent Jawaid, respondent Muhammad Sadiq caused hatchet blows to Jan Muhammad who fell down. On intervention by complainant and witnesses accused Bachoo gave a hatchet blow to Ghulam Muhammad whereas accused Uris dealt a hatchet blow to P.W. Bachayo, accused Muhammad Qasim gave hatchet blow to Ghulam Qadir whereas accused Nooro caused hatchet injuries to Ghulam Rasool and Yousuf who sustained injuries. Report of the incident was promptly lodged with police Out-Post Khoski, Police Station Pangrio on the same day at 2-00 p.m.
3. On the part of respondents one Muhammad Qasim lodged report on the next day at 11-00 a.m.
Alleging that he and his brothers were granted 12-00 acres of land in Deh Hingorjani and in the proximity of the said land they had purchased 3-00 acres of land from Lakhadino. According to him a dispute was going on over this piece of land between the parties. On the earlier day at about 11-00 a.m. Porrho duly armed with a rifle, Ghulam Muhammad Lashari carrying a shot gun, Ghulam Rasool armed with a rifle, Ghulam Muhammad and Taj Muhammad Lashari armed with rifles, Ghulam Muhammad Sheedi Beldar, Ghulam Qadir Sheedi and Bachayo Sheedi carrying hatchets, Jan Muhammad duly armed with a shot gun and seven unidentified persons firing in air entered their sugarcane cultivation. It was alleged that at the instigation of Mir Muhammad Lashari, Jan Muhammad fired a gun shot at the complainant party. Porrho, Ghulam Muhammad Lashari, Ghulam Rasool Lashari, Ghulam Muhammad Sheedi and Taj Muhammad Lashari also fired from their rifles and guns at them whereas Gluilam Muhammad Sheedi Beldar, Ghulam Qadir Sheedi and Bachayo Sheedi caused hatchet injuries with sharp side or Uris and Bashoo (brothers) and Nooro and Jeewan (nephews) of the complainant. Muhammad Sadiq and Allah Dino went to complain to their Zamindar Shafi Muhammad but did not turn up whereafter report was lodged with police as alleged. Respondents approached the Court of Sessions Judge, Badin for pre-arrest bail who were admitted to interim bail which was subsequently confirmed vide order, dated 5-12- 1995 which has been impugned in the present application.
4. Mr. Muhammad Ashraf Leghari learned counsel for the applicant seriously urged that the respondents having been nominated in the F.I.R. Promptly lodged, specific role of firing gun shot to Allah Dino and causing hatchet injuries to Muhammad Sadiq and Lalkara attributed to respondent Jawaid, they were not entitled to anticipatory bail which has jeopardized the investigation as a whole. He further contended that the respondents neither urged mala fides against the complainant nor the police and their apprehended arrest being unconnected with undue harassm ent or humiliation, they were wrongly admitted to pre-arrest bail which is granted in exceptional and compelling circumstances. Learned counsel submitted that the ocular evidence is confirmed by the post-mortem report as well as injury certificates in respect of the witnesses and there are no reasonable grounds to believe that the respondents did not commit a non-bail offence.
5. On the other hand Mr. Muhammad Jamil Zubedi learned counsel for the respondents submitted that the respondents were falsely involved on account of enmity; that the pr,osecution story as made out in the F.I.R. Was improbable and unbelievable; that there being cross-cases between the parties resulting into injuries to the party of the respondents and the party of the applicant being admitted to bail, learned Sessions Judge was justified in admitting the respondents to pre-arrest bail as the arrest was motivated by ulterior motives.
6. There is no doubt that place of incident in both the cases is one and the same but there is no denial of the fact that the report lodged by applicant was prompt in point of time whereas the counter-report lodged by Muhammad Qasim was belated by 24 hours and there is no plausible explanation forthcoming for this inordinate delay which would prima facie tend to show that the counter-version was afterthought and put forward after due deliberations. It is also not disputed that dispute between the parties over the lands including litigation is going on for the last about two years thus the enmity between the parties can be explained as motive for commission of the offence as well as a ground for alleged false involvement.
7. With regard to the instant death of the deceased as a result of fire-arm injuries and hatchet wounds is not disputed and is supported by the post-mortem report placed on record. The deceased had suffered as many as eight fire-arm wounds on different parts of body including left side head and occipital region of the left side with blackening around. No doubt a single gunshot has been attributed to respondent Allah Dino rest of the injuries are explained by the circumstances that these could be caused by pellets emerging from the cartridge as the assailants fired at the deceased from a close range. It is difficult to subscribe to the view of learned counsel for the respondents that after the receipt of gunshot wound at the hands of Allah Dino deceased could not stand or that he could not fire in his self-defense. In my view this point involves deeper appreciation of evidence which is not advisable at the stage of bail and the point raised must be left open for determination at the trial after recording evidence. In any event, any expression or opinion though tentative in nature is likely to prejudice case of either of the parties therefore I would purposely refrain myself from making any comment on this aspect of the case.
8. As regards respondent Muhammad Sadiq hatchet injuries are attributed to him which were found on the person of the deceased by the Medico-legal Officer performing autopsy which contributed towards the cause of death. Even otherwise this respondent would be liable for the act of respondent Allah Dino by reason of sharing of common intention within the meaning of section 34, P.P.C.
9. Dealing with the contention of the learned counsel for the respondents that in the face of counter-versions of the incident respondents were rightly admitted to bail it would suffice to say that the counter-F.I.R. Was lodged after inordinate delay of twenty-four hours and injuries on the person of Uris, Bachoo and Nooro are insignificant and caused by a hard blunt substance are not by itself sufficient to justify the grant of bail. Counter-version also suffers from another infirmity that as against eight persons from the side of the applicant allegedly armed with rifles and shot guns not a single fire-arm injury was found on the person of the accused party.
10. Lastly dealing with mala fides in the wake of apprehended arrest by the respondents there is nothing on record to show that they were falsely implicated or that the prosecution was launched with ulterior motive to disgrace or humiliate them. In Murad Khan v. Fazl-e-Subhan PLD 1983 SC 82 it was held that one of the main considerations for grant of pre-arrest bail is whether the prosecution is motivated by malice so as to cause irreparable injury to a citizen's reputation and liberty. Supreme Court further held 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.
11. In the subsequent case reported as Zia-ul-Hassan v. State PLD 1984 SC 192 it was ruled that the Court has no power to grant bail before arrest unless all the conditions laid down by the Superior Courts are satisfied, the most essential of them being that the intended arrest was tainted with mala fides which must be specifically stated.
12. In Iqbal Hussain v. Abdul Sattar PLD 1990 SC 758 in the case of a sudden fight where injuries on the person of accused were so insignificant and on such iron-vital parts of the body in so far as the scenario depicted in the case was concerned that it was almost impossible to give any benefit to the accused in respect of injuries for making it a prima facie case of self-defense at bail stage.
13. In Mst. Resham Jan v. Abdul Rehman 1991 SCM R 1849 accused had been granted bail in a murder case on ground of further enquiry without their being a finding that there are no reasonable grounds for believing that the accused has committed non-bailable offence. Bail granted by the High Court was cancelled.
14. In Sarwar Sultan v. State PLD 1994 SC 133 Supreme Court laid down guidelines for the Courts in the matter of grant of bail after arrest and bail before arrest. It was observed that 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 offence. 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.
15. In the present case learned Sessions Judge committed an error by admitting respondents to pre-arrest bail at initial stage of investigation without recording a finding that there are reasonable grounds of believing that the respondents have not committed the offence alleged against him.
Needless to emphasize no case of mala fides has been made out. In the aforesaid circumstances even learned Assistant Advocate-General does not support the order granting bail.
16. The case of respondent Jawaid is however, distinguishable in the sense that he is neither related to the other respondents nor did he commit the overt act in the commission of the offence. In the absence of any active role attributed to this respondent, his bail was not opposed on behalf of complainant as well before the learned Sessions Judge, he was therefore, rightly granted bail. The bail granted to respondents Allah Dino and Muhammad Sadiq is however, cancelled. They are taken into custody and remanded to Central Prison, Hyderabad for production before the learned Sessions Judge, Badin, where the case has been sent up.