1. By this application for cancellation of bail, the State has sought cancellation of bail granted to the respondents/accused Riaz Ahmed son of Muhammad Mithal, Muhammad Saleem son of Abdul Rahim, Gul Muneer alias Muneer . Ahmed son of Muhammad Mithal and A.I Muhammad son of Shafi, by the learned Additional Sessions Judge, Naushahro Feroze by impugned order, dated 13-5- 1998. It arose out of F.I.R. No.30 of 1998 under sections 364 and 34, P.P.C.. Of Police Station Paddidan District Naushahro Feroze.
2. The brief facts of the prosecution case as disclosed by complainant A.I Muhammad in F.I.R., dated 20-4-1998, are reproduced hereinabelow; "Complaint is that my son Abdul Ghaffar is aged about 31/32 years. On 14-3-1998 in the evening he went out from the house situated at Paddidan and did not return home whole night. In the morning I searched for Abdul Ghaffar. The son of my maternal uncle Jameel Ahmed son of Muhammad Usman Ansari informed me and my son Dr. Muhammad Iqbal that yesterday in the evening at about 8-30 p.m. He alongwith Abdul Ghaffar returned from town and when reached Ansari Mosque, they found that Riaz and- Muhammad Saleem Rajper standing, met us. I, Abdul Ghaffar, Saleem and Riaz proceeded towards our houses. I went to my house. Abdul Ghaffar, Saleem and Riaz proceeded ahead. Anwar Ansari also informed us that when he came out from the Otak of his maternal uncle Imam Bux, he saw Saleem, Riaz and Ghaffar going together. He went to his house. It was also corroborated by Abdul Rehman Ansari. He disclosed that at about 8-45 p.m. Riaz was standing in front of the house of Ghaffar at the distance of about 20 feet. On enquiry he disclosed that he was going after leaving Ghaffariat his house. I went to my shop. On receiving this information I asked Munir Ahmed Rajpur that due to old enmity over agricultural land his brothers Riaz and Saleem with the help of his friends have abducted my son Abdul Ghaffar. He should be restored to one, he asked me that one of his sons should accompany him to Ajab Hishani for the search of my son Ghaffar. My son Jameel Ahmed accompanied him. He on return disclosed that Ajab Hisbani was not available. His brother was present. Munir Ahemd talked with him in privacy.
3. Both exchanged telephone numbers. Munir Ahmed kept us on fuse hopes and today he has refused. About 2/2 years back Munir Ahmed Rajper had occupied our land and had taken away crop. We had taken back the possession of our land whereupon Riaz and Saleem in collusion with Munir Ahmed and A.I Muhammad, with the help of their friends, have abudcted and concealed Abdul Ghaffar with the intention to murder him. I complain, Justice may be done. "
4. The respondents/accused moved the learned Sessions Judge for bail before arrest. The learned Sessions Judge by order, dated 12-5-1998, made over the bail application to learned Additional Sessions Judge, Naushahro Feroze for disposal according to law. The learned Additional Sessions Judge granted bail to the respondents/accused 1 to 4 by impugned order, dated 13-5-1998.
5. I have heard Mr. Syed Zawar Hussain Jafferi, learned Additional Advocate-General Sindh on behalf of the State, Mr. Maqbool Ahmed Awan, learned counsel for complainant and Mr. Saifuddin Shah learned counsel for respondents/accused and perused the material placed on record as well as police record with the assistance of the learned counsel for the parties.
6. The perusal of the record shows that the dispute was existing between the complainant" and respondents/accused over agricultural land. The land was forcibly occupied by the respondents/accused. The possession of the land was taken back by the complainant party. On that account the respondents/accused party bore grudge against the complainant party and kidnapped Abdul Ghaffar. The complainant party requested respondents/accused party for the return of the abductee but they kept them on false hopes and ultimately refused. Thereafter, complainant party lodged the F.I.R. Without any further loss of time. It is common 'practice that in such circumstances the people in the first instance try to locate or get the custody of the abductee instead of moving the police or any other authority. Due to the prevailing circumstances in this part of the country if police or higher authorities are moved in the first instance there is every risk of the life of the abductee. Thus, the delay in lodging of the F.I.R. Has been properly explained. The parties were previously known to each other and the names of the respondents/accused transpire in the F.I.R. The motive has been disclosed. The abductee has not been traced out/located uptill now.
7. The contention of the learned counsel for the respondents/accused that case was disposed of as false 'cancelled' Class, is not correct. It is borne-out from the record that the Investigating Officer submitted report as required under section 173, Cr.P.C. Before the learned Judicial Magistrate-II, Naushahro Feroze. The case was not disposed of by order, dated 31-12-1999 but it was disposed of under 'A' Class.
8. The relevant portion of the order is reproduced hereinbelow, whichis self-explanatory.
9. "I have perused police papers, and other material available on record and come to the conclusion that there is nothing in support of the prosecution case. Accordingly I concur the view of Investigation Officer and case stands disposed of the case under 'A' class as recommended by the police. The original Police Papers are returned herewith to concerned S. H. O. For further compliance."
10. The 'investigation' implies all the proceedings and steps taken for the collection of the evidence conducted by Investigating Officer i.e. Police. It is well-settled that 'investigation' in cognizable offence never stops even after the report submitted under section 173, Cr.P.C. Before the Court.
11. There is no bar to fresh investigation. The second report never changes the position even if the cognizance of offence has been already taken by the Court and recording of evidence commenced. In this context even, the permission of the Court is not necessary. In the case in hand still investigation is in progress and the same has not been finally concluded.
12. It is also well-settled that consideration for grant of bail before arrest, are quite different from the bail after arrest. The apex Court has time and again laid down the parameters for the grunt of pre- arrest bail in non--bailable offences. The first and fore most thing or condition precedent for the grant of pre-arrest bail is presence of ulterior motive, particularly on the part of the police by means of causing unjustified harassm ent. The another criteria for granting anticipatory bail is that if the involvement is false and arrest is tainted with mala fide for the purpose of humiliation and malicious prosecution. In such a situation the Court can exercise discretion in favour of the accused by way of grant of pre-arrest bail. For the grant or refusal of bail even opinion of the Investigating Officer, is not binding upon the Courts. The prime point involved in the case is the recovery of abductee, who is either still in the custody of the culprits or has been killed. Tie impugned order shows that this point was not given proper attention before extending the concession of pre-arrest bail to the respondents/accused. It is also evident that the Court has deeply evaluated and assessed/weighed the evidence while granting bail. For the purpose of bail only tentative assessm ent is warranted by law and practice of deeper appreciation has been always depreciated by the apex Court. It is urged in the bail application as well as argued by the learned Additional Advocate-General Sindh that the respondents/accused have violated the concession of bail and they have failed to join the investigation the investigation by taking undue advantage of the concession of pre-arrest bail and the respondents/accused are creating hurdles in the investigation and are also issuing threats of dire consequences to the complainant party.
13. The respondents/accused have not challenged the averments made in the bail application by way of any counter-affidavit. Presumption under law would be that the same remained unrebutted and,' accepted.. Thus, where accused issued threats of dire consequences to the prosecution witnesses and thereby abused concession of bail, the accused are not entitled to remain any more on bail. In this context I am fortified by the case of Maqbool Ahmed v. Muhammad Akram and another reported in 1985 SCM R 1528.
14. The upshot of the above discussion is that the order of the learned, Additional Sessions Judge, Nausharo. Feroze granting pre-arrest bail to respondents/accused was passed in haste and is quite unreasonable and unjustified, which requires interference. Consequently the same is recalled with the result that the bail granted to respondents/accused is hereby cancelled. , The observations if any made hereinabove, are of tentative nature and the trial Court may not be influenced thereby while deciding the case upon the evidence adduced by the parties.