' WAJIHUDDIN AHMED, J.--- F.I.R. In this case numbered as 4/1992 was registered at Police Station Drighpur, Taluka and District Shikarpur on 4-5-1992 at 10-30 a.m. And runs thus:-- "Complaint is that Pir Bux Khan is my uncle. I have sufficient number of buffaloes. My cattle pan is situated in Deh Drighpur, where in the Otak my servants are also residing. Usually Pir Bux Khan is residing at my Otaq to have a watch bver the cattles. Yesterday, in the evening Ghulam Hyder Manganhar, informed me that 2-3 days prior I had gone with my personal work to the bungalow of Maqsood Ahmed Shaikh at Shikarpur where Gahi Chachar and Laloo Shaikh complained to Maqsood Ahmed Shaikh and asked that Pir Bux Khan is informant and gets as definitely arrested.
On this Maqsood Ahmed Shaikh asked Laloo Shaikh and Gahi Chachar that within 2-3 days keep an eye on and kill Pir Bux Jatoi to get rid of him. On hearing this information I went to inform Pir Bux Khan about the fact narrated by Ghulam Hyder Manganhar at his Otaq in Deh Darapur where he met me and I informed him of above fact. Due to odd hours of night I stayed there. In the morning I, Arbab son of Pahor Jatoi, (2) Amir Bux son of Mehran Jatoi, (3) Ghulam Hyder son of Jagan, (4)
Arbelo, (5) Manik Kursi, (6) Ladho son of Jamaluddin Indhar and Qalander Box son of Talib Badani were sitting in the Otak when Pir Bux Khan asked Arbelo and Amir Bux to untie the cattle and provide them fodder etc. Who went there and asked Ghulam Hyder, Arbelo, Ladho, Qalandar Bux for cleaning Otak and arranging water and were doing their work. At about 8-00 a.m. In the morning from eastern side of river 20/22 persons duly armed were seen coming and when they came near the Otak I, Ghulam Hyder, Ladho, Qalander Bux and Arbelo identified them. I cried to Pir Bux Khan that Gahi Chachar party has arrived. In the meantime, Gahi Chachar son of Nooral, (2) Hazaro son Allahwadhayao, (3) Baboo son of not known Chachar, (4) Laloo Shaikh, (5) Imdad Chachar, (6)
Miro Khan Chachar armed with klashnikovs stood at the door of Otaq pointing klashnikovs. At that time Pir Bux Khan was sitting in front on a cot. Gahi Chachar asked Pir Bux Khan 'You are informant and trying to get us arrested and impounding our cattle by police and blocking our ways and removing boats'. On this Pir Bux Khan replied that neither he was informant nor had concern with any body. Gahi party insisted that he was their infofmant. I also saw in front of the Otaq Anwar, Gulazar (3) Dino by caste Chachars, Abdul Karim Chachar with rifles, Rasool Bux, Hazoor Bux, Atta Muhammad, Habibullah, Jam, Bahar Chachars by caste with guns, Shihan Shaikh, Muhammad Bux with klashnikov and four unidentified persons with guns who can be identified when seen were standing in front of Otak. Immediately Gahi Chachar fired from klashnikov at Pir Bux Khan which hit him on his right shoulder. Laloo Shaikh fired second burst at Pir Bux Khan which hit him on left arm.
Hazaro fired burst from his klashnikov at Pir Bux Khan which hit him on his stomach and other parts of his body. He raised cry and fell down on the cot. Miro Khan fired burst towards us which hit Arbelo. Imdad fired from klashnikov which hit Ghulam Hyder Badani, Baboo Chachar fired from klashnikov which hit Ladho Indhar, who fell down. I and Kalander Bux fell down on the ground and took shelter of a hut. Then accused went running and firing towards eastern side to the river. I saw that Ghulam Hyder and Arbelo were injured. Pir Bux Khan and Ladho Indhar had died. In the meantime Arbab and Amir Bux came running who informed that party of Anwar Chachar continued firing at them from rifles and guns and while leaving the place the culprits said that who will now act as informant against them and that they had taken revenge by killing Pir Bux. Leaving the above witnesses at the dead bodies of Pir Bux Khan and Ladho and taking the injured I have come to lodge report that above accused in furtherance of their common intention and according to the plan prepared, by Maqsood Ahmed Shaikh duly armed have committed murder of Pir Bux Khan Jatoi and Ladho Indhar and have seriously injured Arbelo and Ghulam Hyder by firing straight burst of klashnikov. The above accused are associates of Maqsood Ahmed Shaikh."
2. It is an admitted position that the applicant neither applied for bail nor surrendered before the Court of trial, in this case the Special Court (S.TA.), Shikarpur, and has been declared an absconder there.
3. For the purposes of anticipatory bail, which is sought here, learned counsel for the applicant has pleaded alibi on the basis of Crime No,65/1992 registered at Police Station Ghotki on 3-5-1992 in relation to which orders of remand are claimed successfully to have been obtained on 4-5-1992 and 11-5-1992. In such context it is urged that the actual arrest was made on 3-5-1992 i,e, the date on which Crime No,65/1992 was registered. This is so far as prima facie case is concerned. As to the concepts of mala fides or ulterior motive, central to grants of pre-arrest bails, Mr. Abdul Fattah Malik has pointed out that there was an admitted enmity on account of the deceased Pir Bux having been acting as an informer. As to the third element of the applicant suffering humiliation, it is urged that the applicant is Sardar of Chachar tribe and also a political figure.
4. In so far as the power of grant of anticipatory bail in S.TA. Matters is concerned such is deducible on the reasoning which emerges from State v. Qaim All Shah 1992 SCM R 2192 and Asif All Zardari v.
State 1993 PCr.LJ 781. None of these, however, was a case directly involving pre-arrest bail.
Nonetheless following the case of Qaim All Shah above Division Benches of this Court in Ramzan and others v. State (Criminal Bail Application No,503 of 1992 at Sukkur) and Syed Khurshid Ahmed Shah v. State (Criminal Bail Application No,715 of 1992 from Karachi) granted interim pre-arrest bails in two distinct S.TA. Matters. Such interim bails are also claimed to have been confirmed. We, therefore, are inclined to conclude that the power to grant bail before arrest, inbuilt within the provisions of section 497(1), Cr.P.C., is also available to this Court in matters, which are covered by the Suppression of Terrorist Activities (Special Courts) Act, 1975. What is more, we are further inclined to deduce from the discussion of Sidhwa, J. In the case of Qaim All Shah ibid. That like power to grant anticipatory bail may also be resorted to by a Special Court functioning under the said Act of 1975, a proposition to which the learned AA.-G. Has conceded.
5. Having said as much we have still to examine whether a case for pre-arrest bail in the instant matter 'has been made out. Upon facts as reflected in the F.I.R. It is clear that a specific role was assigned to the applicant, namely, hitting with klashnikov fire Ghulam Hyder Badani but it is not clear whether the victim did or did not ultimately survive though it remains an admitted position that three others, namely, Pir Bux, Ladho and Arbelo suffered death as a result of the incident, which ex facie seems to be governed by section 149, Cr.P.C. Whether or not the applicant is able to establish alibi may be difficult to tell at this stage moreso because he is claimed to have been arrested, at the time and on the date of the incident, pursuant to a blind F.I.R. And further claims to have been let off later on, even though the offence covered by such F.I.R. Fell under section 302, P.P.C.
6. Regarding the question of mala fides, another requirement for grant of pre-arrest bail, what the learned counsel for the applicant terms as ulterior motive for implication may well be termed as the motive for the crime, a situation no doubt which will be resolved upon trial of the case.
7. On the last question of the possibility of the applicant suffering undue humiliation if arrested, in the first place, the learned A.A.-G. Says that it is not the applicant but Sardar Haji Khan Chachar, another gentle man, who is the Sardar of Chachar community. Even otherwise, we are of the view that a person, who has already been arrested and has manifestly been sentenced at least for a period of 14 days, is not likely to suffer any undue humiliation if he is arrested, pursuant to this crime, for a person who has never been arrested before in connection with a criminal offence cannot be equated with one who has been so arrested on an earlier occasion. The prospect of demonstrable humiliation upon arrest is also therefore, not there.
8. In such circumstances we have found no merit in this bail application and dismiss it, simultaneously recalling the earlier order of interim bail.