1. ' By this application applicant Muhammad Shareef seeks cencellation of bail before arrest granted to respondents Ali Madad, Muhammad Saleh and Wali Muhammad by learned Sessions Judge, Khairpur on 30-9-1995.
2. ' The relevant facts of the prosecution case are that on 21-7-1995 at 13-00 hours an entry in Roznamcha was made at PP Setharja at the complaint of applicant, which was later on incorporated in section 154, Cr.P.C. Book maintained at P.S. Mirwah on the same date at 14-00 hours, wherein applicant stated that Haji Shah Baig is his cousin who resides about 3 KMs away from his house. On the day of incident Shah Baig had called applicant at his Otak to discuss party matters, where applicant, Mushtaque and Zulfiqar were discussing the party matters, when at about 9 a.m. They heard a call from outside of the Otak on which Shah Baig asked his sons Zulfiqar and Munawar who went outside the Otak and found respondent Ali Madad armed with rifle respondents Muhammad Saleh and Wali Muhammad armed with pistols and co-accused Fateh Muhammad, Gul Muhammad, Gulsher, Ghulam Farid and Muhammad Tahir armed with guns and two unidentified persons of Jamali Tribe with guns standing there. Respondent Ali Madad asked Munawar about his father Shah Baig from whom they have to take their revenge. After uttering these words coacccused Gulsher and respondents Muhammad Saleh and Wali Muhammad and two unidentified accused fired from their weapons at Zulfiqar and Munawar which hit them who cried and fell down. On the cries and fire reports Shah Baig came outside of the Otak and started running towards eastern side. On seeing Shah Baig respondents Ali Madad, co-accused Gulsher, Ghulam Fareed, Gul Muhammad, Muhammad Tahir and Fateh Muhammad fired from their respective weapons at him which hit Shah Baig, who cried and fell down and died instantaneously.
3. On the cries and fire report the applicant and Mushtaque reached there. Thereafter respondents and other accused boarded on their motor cycles and went away towards their houses alongwith their weapons. Applicant left Mushtaque on the dead body of Shah Baig and brought injured Zulfiqar and Munawar to hospital at Thari Mirwah and thereafter he went to PP Sotherija for report, wherein describing the motive he stated that there was a dispute between Shah Baig and Ali Madad and others over the matrimonial affairs since long due to such annoyance they murdered Shah Baig and have caused fire-arm injuries to Zulfiqar Ali and Munawar sons of deceased Shah Baig, Injured Zulfiqar subsequently succumbed to injuries and died on 23-7-1995 in the hospital.
4. ' It is further mentioned in the application that an application for grant of pre-arrest bail was moved on behalf of respondents All Madad, Muhammad Saleh and Wali Muhammad before the learned Sessions Judge, Khairpur on 27-8-1995, who allowed the application and granted them pre-arrest bail on 30-8-1995.
5. ' I have heard Mr. Habibullah Shaikh counsel for applicant, Mr. S. Ali Aslam Jafferi counsel for respondents Ali Madad, Muhammad Saleh and Wali Muhammad and Mr. Sardar Abdul Sattar Chohan appearing for Additional A-G. At length.
6. ' Applicant's counsel contends that the names of respondents Ali Madad, Muhammadd Saleh and Wall Muhammad find place in F.I.R. Alongwith the other co-accused namely Fateh Muhammad, Gul Muhammad, Gulsher, Ghulam Farid and Muhammd Tahir and two unidentified persons.
7. Respondent Ali Madad, co-accused Gulsher, Ghulam Farid, Gul Muhammad, Muhammad Tahir and Fateh Muhammad are said to have fired from their weapons at deceased Shah Baig who died there and then whereas respondent Muhammad Saleh, Wali Muhammad, and co-accused Gulsher and two unidentified persons according to F.I.R. Fired from their respective weapons at deceased Zulfiqar and P.W. Munawar. Counsel further argues that deceased Shah Baig according to postmortem report, has received 9 fire-arm injuries out of which injury No,1 is caused by bullet which is fired from a weapon containing bullet inside and can be linked with respondent Ali Madad who according to F.I.R. Was armed with rifle. Deceased Zulfiqar as per post-mortem report has received 11 lacerated punctured wounds and P.W. Munawar has received 7 lacerated punctured wounds. Applicant's counsel submits that the ocular evidence of eye-witness and injured Munawar, gets support from medical evidence. Irrespective of this, counsel points out that the statement of deceased Zulfiqar recorded during the time of his survival will be treated as his dying declaration.
8. He lastly urges that there is evidence of motive and recovery of 16 empty cartridges from the place of occurrence and further submits that respondents have not been able to show any reasons for their false implication or their intended arrest with the mala fides. These too have neither been mentioned nor discussed by the trial Court in its bail grant order. He places reliance on the case- law reported as 1978 SCM R 432, 1983 SCM R 645, PLD 1983 SC 83, PLD 1984 SC 192 and 1984 Pak. Cr.LJ 3123.
9. ' On the other hand Mr. S. Ali Aslam Jafferi respondent's counsel submits that the respondents have been allowed pre-arrrest bail by the Court of Session on three grounds.
10. ' The first ground is about delay in lodging of the F.I.R. According to him incident allegedly took place at 9 a.m. Whereas F.I.R. Is lodged at 1 p.m. i.e, after four hours of the incident. The distance in- between place of incident and Police Post Sotherja is about 2/3 KMs therefore in view of this delay the chance of deliberation, and consultation to throw wider net cannot be ruled out. Mr. Jafferi states that the other ground taken into the consideration by the Trial Court is that in view of exaggertion and false implication sanctity of F.I.R. Becomes highly doubtful when the complainant and eye-witnesses state in their 164, Cr.P.C. Statements that the names of two unidentified persons by caste Jamalies are given falsely in the F.I.R. He further argues that according to F.I.R. 10 persons are alleged to have fired at complainant party but it is strange that the complainant and other witnesses except two sons of deceased did not receive any injury. He lastly submits that consideration for grant of bail and concellation thereof are quite altogether and different. Once bail was granted by the Court of competent jurisdiction then strong and exceptional grounds would , be required for cancellation thereof. According to him the case of the respondents is of further enquiry and it is mainly because of this reason that they are extended concession of bail before arrest by the Trial Court. He refers the case-laws reported in 1991 P. Cr.LJ page 241, 1995 SCM R 1178 and 1249, PLD 1995 SC 34, PLD 1988 SC (Azad Jammu and Kashmir) 148 and 1993 PCr.LJ 612, in support of his contentions.
11. ' Mr. Sardar A.S. Chohan appearing for Additional A.-G. Vehemently opposes the grant of bail before arrest to the respondents by the Court of Sessions Judge and states that the trial Court has not exercised its jurisdiction properly while granting bail and submits that it is a fit case for cancellation of bail.
12. It is a broad daylight incident having taken place at 9 a.m. In which 10 persons including respondents are involved and assigned specific role in the commission of the offence. Respondent Ali Madad against whom there is a specific motive shown in the F.I.R. Is said to have fired from his rifle alongwith other co-accused straight at deceased Shah Baig, who sustained shots and died instantaneously. According to the case of the prosecution on enquiry about deceased Shah Baig by respondent Ali Madad, respondents Muhammad Saleh and Wali Muhammad armed with pistols alongwith co-accused Gulsher and two unidentified accused fired at Zulfiqar and Munawar the sons of deceased Shah Baig, who sustained serious fire-arm injuries and injured Zulfiqar succumbed to the injuries on 23-7-1995. This ocular evidence is fully corroborated by medical evidence. The post-mortem notes of Haji Shah Baig show the presence of 9 fire-arm injuries whereas post-mortem notes of deceased Zulfiqar show the mention of several injuries from fire- arm. The medical certificate of injured Munawar Ali shows the presence of 7 fire-arm injuries with lacerated type penetrating wounds. The 4 hours delay in lodging of the F.I.R. c referred by respondents' counsel is fully explained by the complainant in the F.I.R. Saying that after leaving P.W.
13. Mushtaque over the dead body of Shah Baig he removed injured Zulfiqar and Munawar to Hospital at Thari Mirwah and thereafter proceeded for lodging of the F.I.R. Leaving them under the supervision of some doctors in the hospital and then going to P.P. Setharija at a distance of about 8 to 10 KMs/ for lodging of the F.I.R. Will definitely require the time of 3/4 hours. In such a position there will hardly be an occasion for the deliberation or consultation as argued by the respondent's counsel. The main ground urged by respondnets' counsel that the complainant has exaggerated in the F.I.R. By mentioning the two unidentified accused Jamali by caste to have participated in the commission of the offence alongwith respondents and nominated accused, were found innocent and not challaned on the basis of the 164, Cr.P.C. Statements of P.Ws. Munawar and Mushtaque, in my opinion cannot be considered at this stage as giving findings on this point will amount to the appreciation of the evidence, which will prejudice the case of the prosecution. In the case of bail the Court is not required to probe into the matter but has to make a tentative assessment of the material produced to ascertain whether there are reasonable grounds to believe that the accused has committed the crime. The principles laid down by the Honourable Supreme Court for grant of pre-arrest bail are quite different from the bail after arrest.
14. ' In the case of Mureed Khan v. Fazal-e-Subhan and another (PLD 1983 SC 82), it has been held that pre-arrest bail can only be granted on these conditions viz. Arrest being for ulterior motive such humiliation and unjustified harassment, prosecution motivated by motive so as to cause irreparable injury to reputation and liberty and motivation of police on political consideration. In this citation the entire law on the ground of bail before arrest from 49 to 83 is discussed.
15. ' Honourable Supreme Court in the case of Ziaul Hassan v. The State (PLD 1984 SC 192) cancelled interim pre-arrest to the petitioner by the trial Court on the grounds that the trial Court was unaware of this aspect of the case but also the order shows a lack of awareness of the basic law about the pre-arrest bail as distinguished from the bail after arrest. The trial Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts from time to time are satisfied,. The most essential of them all being that the intended arrest would be tainted with mala fide which must be specifically stated. Here in this citation the contention that by the Trial Court could not be cancelled under section 497(5) by the High Court after nearly 5 months, that the trial Court should have been approached in the first instance, that the recovery of misappropriated articles could not be considered as the valid ground for consideration of pre- arrest bail, that on merits it was not a case for interference with the discretion exercised by the trial Court in granting a pre-arrest bail has been replied by the Honourable Supreme Court that there is no rigid rule regarding the period whereafter bail should not be cancelled. It might become relevant in some cases but no hard and fast rule can be made. It depends upon the circumstances of the each case. In a given case notwithstanding the long passage of time after the grant of bail, the circumstances might justify the cancellation not only on the ground of propriety but alternately on the ground of it being duty under the law. An illegal order of bail or total lacks of the awareness of the facts or law involved are examples.
16. ' In the case of Muhammad Shahbaz Khan and 2 others v. The State (1978 SCM R 432) referred above, the Honourable Supreme Court refused to grant pre-arrest bail on the allegations that the accused caused many injuries to the opposite-parties after arming with deadly weapons though it was a case of counter-version.
17. ' In another case of Ghulam Rasool and 3 others v. The State (PLD 1980 SC 95), Honourable Supreme Court upheld the ders of two Courts below refusing bail to the petitioners on the ground that they were attributed specific role in F.I.R. Of causing injuries, though the 13 out of 18 persons accused in F.I.R. Were found false by the police.
18. ' This Court in the case of Abdul Khalique v. The State and others (1984 PCr.LJ 3123), cancelled the pre-arrest to the applicant in which the petitioners have caused fire-arm injuries to four persons.
19. ' I respectfully disagree with the law referred by counsel for the respondents as it is entirely under different facts and circumstances and has no bearing with the facts of the present case.
20. ' The Courts above do not normally interfere with discretion exercised in bail matters by the Courts below unless the same is exercised in disregard of the principle governing the administration of criminal justice. Here in this case learned Sessions Judge has seemingly exercised his discretion beyond the scope of his jurisdiction as it has not been carefully balanced and weighed in the scale of justice and requirement of law. The case of the respondents in any case does not deserve to be considered for grant of pre-arrest bail on merits and also within the ambit of principles laid down by the. Superior Courts for grant of pre-arrest bail. The respondents have failed to show any mala fides on the part of the prosecution for their false implication. In these circumstances, I am of the considered opinion that in view of the above discussion and the case-law referred above, no case for bail before arrest is made out.
21. Accordingly, the order dated 30-8-1995 of learned Sessions Judge, Khairpur granting bail before arrest to the respondents Ali Madad, Muhammad Saleh and Wali Muhammad is set aside. The respondents may be dealt with according to law by the concerned Police as thinks fit.
22. Bail cancelled.