This is an application for cancellation of bail filed under section 497(5) read with section 561-A, Cr.P.C. By the complainant of F.I.R. No,193 of 1998 dated, Police Station Kalakot Karachi (South) lodged for the offence under section 324.
2. On 20-11-1998, learned Sessions Judge, Karachi (South) granted bail before arrest to the present three private respondents in Criminal Bail No,509 of 1998, which has been challenged by the complainant through this proceedings. The facts narrated in the aforementioned FIR. Are that on 26-10-1998 at about 9-00 a.m. The complainant went to the house of his brother Haji Aurangzeh, where he was sitting alongwith his said brother and his son Habibullah when the three respondents, namely, Alam Khan, Ahmed alias Kakoo and Saifullah all sons of Abdullah came duly armed with T.T. Pistol and started firing upon the complainant, his brother and his son. It is further alleged that the brother and the son of the complainant saved their lives by running inside the house and that the complainant received injuries on the left side of his leg and on the thigh. He was taken to the Civil Hospital by his son Habibullah, where his statement under section 154, Cr.P.C. Was recorded. It is alleged in the F.I.R. That these respondents Nos. 1 to 3 fired with T.T. Pistols at the complainant with intention to kill him.
3. I have heard Mr. Iqtidar Ali Hashmi, Advocate, for the Complainant/Injured, Mr.Gul Zaman Khan, Advocate, for the accused party and Mr. Sharafat Ali Khan, Advocate, for the State. It was argued by Mr. Hashmi that the pre-arrest bail was granted to the accused persons by the learned Sessions Judge Karachi (South) in clear disregard of the rule laid down by the Hon'ble Supreme Court in the case of Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82. According to learned counsel for the complainant, the accused failed to establish, even prima facie, that the arrest of the accused was motivated due to mala fide, humiliation and/or for the purpose of harassment. It was further argued by Mr. Hashmi that even if the case of prosecution is that it is a case of further inquiry as contemplated under section 497(2), Cr.P.C. This is no ground for granting pre-arrest bail.
In addition to Murad's case (ibid) he has placed reliance on the following cases:--
(i) Sarwar Sultan v. The State and another PLD 1994 SC 133; Hi) All Muhammad v. Yamin and another 1981 SCM R 1139;
(iii) Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182;
(iv) Mst. Bashiran Bibi v. Nisar Ahmed Khan and others PLD 1990 SC 83;
(v) Muhammad Parvez v. Badi-uz-Zaman Khan and others 1985 PCr.0 3007;
(vi) Malik Muhammad Nawaz Khan v. The State and others 1997 PCr.LJ 390;
4. Mr. Gul Zaman Khan has raised a preliminary objection to the maintainability of the instant petition for cancellation of bail on the grounds that an application under section 497(5), Cr.P.C. Is to be filed first before the concerned Court which granted the bail. It was strenuously argued that since the Court of Sessions Judge was not moved earlier under section 497(5), Cr.P.C.. This direct application before the High Court is not maintainable. He has drawn my attention to the case of ijaz Ahmad v. The State 1974 SCM R 166. In that case, the petitioner who was involved under section 302, P.P.C. Was granted bail before arrest by the Sessions Judge Rawalpindi, which was cancelled by the Lahore High Court against which Petitioner/accused filed petition for special leave which was dismissed. One of the grounds urged before the Hon'ble Supreme Court was that the High Court had no power to cancel the bail granted by the Sessions Judge under section 498, Cr.P.C.
Which contention was held to be misconceived. It was further held that the High Court has ample power under section 439 of the Code, to examine any order passed by subordinate criminal Court.
No doubt present proceedings is filed under section 497(5), Cr.P.C. Read with section 561-A, Cr.P.C.
But if this Court comes to the conclusion that the order granting bail was unjustified, irregular and is liable to be recalled, there will be no bar in converting this proceedings into revision application as provided under section 435, Cr.P.C. In law there is no bar in converting one type or kind of proceedings into other kind of proceedings provided that the jurisdiction of that Court remains intact. I am fortified in my view by a decision of Division Bench of this Court in the case of Mst.
Akhtar Nasimi v. Martial Law Administrator Zone 'C' Karachi and 2 others PLD 1982 Kar. 130 where Constitutional petitions were converted into appeals as provided under section 21 of the Sindh Rented Premises Ordinance, 1979. This view was followed by an Acting Chief Justice of the Balochistan High Court Ajmal Mian J., (now Chief Justice of Pakistan) where it was inter alia held that in a fit case, even a bail application can be converted into revision or into an application under section 561-A, Cr.P.C. if the dictates of Justice so demand in the absence of any expressed prohibition. It was further held that the High Court may act under section 439, Cr.P.C.,upon an information received through any mode to foster the end of justice. Reference was made to the cases of Erfan Shaikh and another v. The State 1971 PCr.LJ 486 and Imtiaz Ahmad v. Ghulam Ali and 2 others PLD 1963 SC 382. With this view, I hereby overrule the preliminary objection raised by Mr. Gul Zaman. I would, however, like to observe that where cancellation of bail is sought after or during examination of party or prosecution witnesses, for instance, where there is an objection that accused misused privilege of bail by tampering witnesses or by repeating the same offence, then in such cases application under section 497(5), Cr.P.C. Is to be preferred before the trial Court, such being a question of fact.
5. Before proceedings further, I would like to refer the last two paragraphs of the impugned order through which private respondents/accused were granted bail as it reflects the reasons which prevailed upon the learned Sessions Judge, Karachi (South), while granting pre-arrest bail to all the three accused: ".. ...Admittedly, the offence had taken place in the early hours of the morning at 9-30 a.m. When number of passers-by and the people of locality and shops would be present yet the police was not able to record statement of the people from the locality but only the brother and son of the complainant were examined. It is also an admitted position that the parties are related inter se but are at dagger drawn and have number of counter-cases pending between them. Even a judicial notice of the fact can be taken that both parties are facing trial in cases pending before this Court.
Their two other matters are pending disposal before learned VIth Additional Sessions Judge, Karachi South, as such their false implication also cannot be ruled out. As regards injured/complainant, the learned counsel for the applicant/accused has contended that the injured remained in Civil Hospital for 2/3 days and, whereafter,' he was shifted to Liaqat National Hospital where he has been purposely admitted so as to show that the injuries allegedly received by him are grievous in nature. He has contended that the sole purpose of the complainant/injured is to falsely rope the present applicants into this case, otherwise, the applicants are quite innocent.
I have considered this aspect as well and I am of the view that in the peculiar circumstances when admittedly the parties are on inimical terms with each other, false implication cannot be ruled out or at least roping other persons in it. The learned District Attorney while making his submissions frankly admitted that apart from the 161, Cr.P.C. Statements of P.Ws. Aurangzeb and Habibullah no other independent witness was examined by the Investigating Officer. In Katbar and another v.
State 1998 PCr.LJ 1438 referred to by Mr. Hashmi, the complainant had named the person who had caused him the injury and on which part, and had also alleged that the same person had repeated the fires from T.T. Pistol but was saved by the other people who had gathered there on his cries. The facts of the present case are different and distinguishable. The complainant and the witness have not said as to which of the applicant had caused the injury to the complainant. Thus, it is yet to be established as to which of the three applicants has actually caused the injury to the complainant hence this is, also a fact which needs further inquiry. The upshot of the above discussion is that there is scope of further enquiry as contemplated under section 497(2), Cr.P.C. And the applicant/accused have, thus, made out a case for confirmation of their interim pre-arrest bail, which is hereby confirmed on same terms and conditions... ... ..."
6. Mr. Shafat Ali Khan, learned counsel appearing for the State, adopted the arguments of Mr. I.A.
Hashmi, Advocate, for the Complainant/Injured and contended that since the question of mala fide and false involvement was not considered in its true perspective by the learned Sessions Judge, the pre-arrest bail granted to the three accused are liable to be cancelled/recalled. Mr. Gul Zaman has argued that the allegations of false implication and mala fide on the part of the prosecution were clearly and specifically alleged in the bail application as well as in the supporting affidavits of all the three accused persons tiled in support of application for pre-arrest bail. He has referred to paras. 1, 3 to 6 of the bail application filed before the Court of Session. It was further contended that the complainant himself has admitted in the opening para. Of the F.I.R that there exists old enmity between the complainant and accused party which facts is sufficient to prove mala fide on the part of the complainant. According to learned counsel, this gives reason to believe that the accused persons were falsely implicated in the case due to previous enmity.However, learned counsel has ignored the fact that the ground of old or previous enmity is always a double adged sword. It sometimes gives rise to the suspicion that an accused person may have been involved for such enmity but at the same time it also gives rise to the cause for accused party to attack the complainant. This, being a question of facts, cannot be considered at this stage. Following are the, relevant paras. From the bail application filed before the Court of Sessions and which were supported by the affidavits of all the three accused:-- "
1. That applicants have been involved due to mala fide on the part of injured/complainant Bahadur Khan due to previous enmity and police was also motivated to register the above ease against the applicants being all the three male members of their family.
2. ..........
3. That there is long-standing enmity between the applicants and complainant party since long inasmuch as that on 24-10-1995 an incident took place in which Matiullah, real brother of applicants had sustained injuries arid such report was lodged from the applicants side against complainant party.
4. That thereafter on the same day on 24-10-1995 when applicants had brought Matiullah in injured condition to Civil Hospital where complainant party attacked upon them in which Saifullah sustained injuries, real brother of the applicants and Habibullah Khan another real brother of applicant was shot dead which incident took place inside Civil Hospital, Karachi a report was lodged against the complainant at P.S. Eidgah. Later on complainant party also lodged case against applicants and both the cases are pending before the Learned VIth Additional Sessions Judge, Karachi (South).
5. That later on in 1996 Mazhar Iqbal, Security Guard of Bahadur Khan lodged false F.I.R at Police Station Kalakot against the applicants and others for an offence under section 324, Qisas and Diyat Ordinance which case is pending before this Hobble Court. A counter-case was filed by the applicant against Aurang Zeb Khan and others which is also pending before this Hon'ble Court.
6. That complainant party is dealing with advancing loan to different persons, several times quarrel took place between the complainant party and other debtors, thus, complainant party has many enemies
7. It was also argued on behalf of the accused that the ground for cancellation of bail and for grant of bail are two different things. It was further submitted that no purpose would be served if the accused are remanded to the police custody. Mr. Gul Zaman has drawn my attention by showing me an entry No,13 of the Station diary of the concerned police station which is of the same date and time when the F.I.R was lodged which shows that the police station had received call from M.L.O, namely, Hanif Shaikh, of Civil Hospital, Karachi that one injured (complainant) aged 48 years had been admitted in the Hospital who had complained that he had received injuries from firing by unknown person. Mr. Gul Zaman Khan has shown me a photocopy of such entry from the station diary of Police Station Kalakot, when enquired from the State Counsel he has admitted this fact after referring to the police papers. Mr. Gul Zaman Khan has referred to the several reported cases but I would like to consider only following cases as they are relevant and will assist in deciding the controversy involved in this cancellation of bail:
(i) Muhammad Fazil v. Mirza Noor Hussain and another NLR 1984 Cr.LJ 141;
(ii) Mian Sherzada v. Dost Muhammad Kiryana Store, and others NLR 1989 UC 253;
(iii) Mian Fazal Ahmad v. Rohail Asghar 1986 PCr.LJ 1434;
(iv) Meeran Bux v. The State and another PLD 1989 SC 347;
(v) Kareesh and others v. Sispal and another 1996 PCr.0 937; and
(vi) Shamsur Rehman v. Muhammad Rafiq and another PLD 1997 Kar.194.
8. Reverting to the cases cited by Mr. Iqtidar Ali Hashmi, it was held by the Hon'ble Supreme Court in Murad Khan's case PLD 1983 SC 82 that the condition for grant of pre-arrest bail is that the arrest of the applicant must be shown for humiliation and unjustified harassment or that it is for some ulterior motives. It was further clarified that "one of the main considerations for grant of bail is whether the prosecution is motivated by malice so as to cause irreparable injury to a citizen's reputation and liberty." It is to be seen that the Hon'ble Supreme Court of Pakistan has used the expression "one of the main consideration" and not "the only consideration" in Murad's case. In the case of Sarwar Sultan PLD 1994 SC 133 pre-arrest bail granted by High Court was cancelled as it was found by the Supreme Court as not justified.On legal grounds and .Was not in accordance with the guide lines reflected in the case law laid down by the Supreme Court. The case of Ali Muhammad 1981 SCM R 1139 was considered by the Hon'ble Supreme Court in the cases of Murad Khan and Sarwar Sultan. The case of Muhammad Siddiq PLD 1985 SC 182 deals with the question of "further inquiry" and the question of abscondence of an accused, thus, it is not relevant for the present discussion. Similarly, in the case of Mst. Bashiran Bibi PLD 1990 SC 83 the expression "further inquiry" was considered. In Muhammad Nawaz Khan 1997 PCr.LJ 390, it was held by a learned Single Judge of Shariat Court, Azad Jammu and Kashmir that the jurisdiction of granting anticipatory bail which is the process of diverting normal course of law has to be exercised with caution. In the case of Muhammad Pervez 1985 PCr.LJ 3007, a learned single Judge of Peshawar High Court drew up a line of distinction between pre-arrest bail and bail after arrest. It would be relevant to quote a para. From the case of Sarwar Sultan (supra) which deals with the question as to how the case law is to be interpreted in criminal matters. It reads as follows: "... ...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 are not the same and each case is to be decided or for that matter, bail matter in that case is to be heard 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 Court, 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 requirements."
9. It is the duty of the Investigating Agency to see that where there is no sufficient material to connect an accused person with the alleged offence, they are not required to make attempts for his arrest. If an Investigating Agency/Police Authorities despite weakness in the prosecution case make attempt to apprehend an accused person, this may be a situation where an applicant may plead that his arrest is being unjustified and motivated with ulterior motives. It is some time difficult for an accused who is in a situation of grave emergency, to obtain bail before arrest, to collect materials to satisfy the conscience of the Court that out of mala'fide his arrest is required by the police. It would not be just and fair to stretch laws of civil pleadings in the bail matters. If upon merits of the case, the Court comes to the conclusion that there is no sufficient material with the Prosecuting/Investigating Agency to connect accused with the alleged offence and from the material placed before such Court, it tentatively appears to be a case with reasonable doubts then in such matters a Court may extend the concession of a pre-arrest bail to an accused on the allegations of ulterior motives, mala fides, humiliation and harassment. To reach such opinion, the Court may look into the conduct of the Prosecuting/Investigating Agency to ascertain their good faith and bona fides which can be gathered from the tentative assessment of the material collected by the Prosecuting Agency.
10. In the case of Meeran Bux (supra) a Bench of Supreme Court comprising five Judges granted pre-arrest bail to the appellant by setting aside the order of this Court and by restoring the order of the Sessions Judge granting the pre-arrest bail to an accused facing charges under section 307, P.P.C. I would like to observe that in .The case of Murad Khan (supra) the decision was given by four Judges of the Supreme Court. In the case of Meeran Bux (supra), pre-arrest bail was granted by the Sessions Judge which was cancelled by this Court against which matter went up to the Supreme Court where reference was made to the case of Jamaluddin v. The State 1985 SCM R 1949 whereafter bail before arrest was granted with the following observations:-- "Since the High Court has not considered the case on merits it would seem proper to remand the case to the High Court to consider it on merits. However, Mr. Pirzada stated at the bar that the other accused have already been granted bail in this case. Since the appellant remained on bail for more than one year before the bail was cancelled, by the High Court without abusing the concession of bail in any manner and the reason given by the learned Sessions Judge for granting pre-arrest bail that the injury was on non-vital part of the body of the deceased i,e, thigh and was simple, was not without foundation, we would, therefore, in the circumstances, set aside the impugned order of the High Court and restore the order of the Sessions Judge granting the pre- arrest bail."
11. As held in the case of Jamaluddin (ibid) grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard. In that case, pre-arrest bail was granted by Sessions Judge after reaching the conclusion that the accused had been involved, for ulterior motives of harassing due to enmity existing between the parties. However, this Court cancelled the bail granted to the said accused against which a petition was filed before the Hon'ble Supreme Court which was converted into appeal and the accused was granted bail. Following are the relevant observations of the Hon'ble Supreme Court in the case of Jamaluddin (ibid):-- "After hearing the learned counsel, we find that the learned Sessions Judge in his order observed that the State had no objection for the grant of bail to the petitioner and the four-other applicants for pre-arrest bail. Further reasons that impressed the learned Sessions Judge were that the deceased had not implicated the petitioner in the commission of the offence, that admittedly there existed enmity between the parties, that no empty was found at the scene of occurrence, and that there were many criminal cases between the parties. We find that unfortunately the learned Judge in the High Court did not take into consideration these weighty grounds upon which the order of the learned Sessions Judge was founded. It has been laid down by this Court that the grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard. In Murad Khan's case to which reference was made by the learned Judge, this Court reiterated the principle that arrest for ulterior motives such as humiliation and unjustified harassment was a valid consideration for grant of pre-arrest bail. Similar rule was laid down in Zia-ur-Hassan's case. In our opinion, therefore, the order of the learned Sessions Judge, did not in any respect, disregard the well-recognized principle for grant of pre-arrest bail to the petitioner. Without upsetting the finding reached by the learned Sessions Judge that the petitioner had been involved for ulterior motives of harassing due to enmity existing between the parties the learned Judge in the High Court was not justified to invoke his suo motu powers for the purpose of cancelling the order of bail."
12. Keeping in view the facts of the prosecution case and the plea taken in defence, it could be safely held that the present case was a fit case for grant of pre-arrest bail. In the back drop of previous criminal cases and old hostilities the allegation of false involvement of the present accused has some force. After going through the police papers and other record produced by the parties and after considering respective arguments of all the Advocates, I am of the considered view that it will not be just and fair to recall the order of granting pre-arrest bail.
13. As a result of above discussion, this petition under section 497(5), Cr.P.C. Is rejected with the observation that it will be open to the complainant party to repeat such application before the trial Court if some more material is brought on record, warranting cancellation of bail. Needles to add that all the observations made hereinabove are tentative in nature and in no manner will prejudice the mind of the learned Trial Judge who is expected to expeditiously proceed with the trial and to conclude the same preferably within one year.