1. Through this application filed under section 498/498-A read with section 561-A, Cr. P.0 , petitioner Muhammad Hayat Dhamrah has prayed for grant of protective pre-arrest bail and suspension of proclamation order as well as non-bailabale warrants issued against him by the learned 7th Additional Sessions Judge, Larkana in Crime No,45 of 2001 of Police Station Dhamrah registered under sections 302,148,149,114,109,324 and 337-H(2), P.P.C.
2. The facts in brief giving rise to this application are that on 18-5-2001 at 2230 hours a report under the above named sections was lodged at Police Station Dhamrah by complainant Haji son of Ghulam Muhammad. It is stated in the F.I.R. that on 17-5-2001 in the evening time when the complainant and his relatives were raising a wall in front of the guest house for "Pardah" purpose, accused Saindad and Zakir Hussan came there and said that they would not allow the complainant side to raise the wall as it was in their "Muhag"/frontage. At about sun-set time on the same day the complainant narrated these facts to his father Ghulam Muhammad who is head of his clan who summoned Zakir Hussain and Saindad at his bungalow, where few other persons including Dr. Abdul Sattar, Abdul Qudoos and Abdul Khaliq were also present. The father of complainant after hearing Zakir Hussain and Saindad declared that the erection of wall was justified for "Pardah" Purpose but Zakir Hussain and Saindad insisted that they shall not allow any further construction of the wall. There was exchange of harsh words whereafter the said two accused went away. After few minutes the complainant and others heard cries at the outer gate.
3. The complainant, Dr. Abdul Sattar, Abdul Qudoos and Abdul Khalique went there and saw on bulb light and identified 10 persons named in the F.I.R. including Barkat and present accused/applicant Muhammad Hayat. Both the said accused were armed with rifles like Kalashnikov. Accused, Saindad instigated others whereupon Zakar Hussain fired gunshot at Dr. Abdul Sattar which hit him on left side of his chest. Accused Murtaza also fired a gun-shot at Dr, Abdul Sattar at neck.
4. Accused Jabbar fired at Abdul Qudoos on his right leg. Due to cries witness Rashid Hussain came running from the Otaq who was also fired at by Ghulam Hadi with gun. The complainant side went inside the bungalow to take shelter even thereafter accused persons went on firing. Witnesses Shafi Mohammad, Abdul Rasheed and other villagers also reached there and entreated the accused in the name of Holy Qur'an whereafter the accused went away while tiring in the air from their respective weapons. Dr. Abdul Sattar was lying unconscious. He was shifted to Civil Hospital Larkana where he succumbed to the injuries. Leaving the P.Ws. over .the dead body, the complainant went to police station and lodged his report that accused named in the F.I.R. at the instigation of Saindad and in conspiracy with accused Talib Hussain have committed murder of Abdul Sattar and caused injuries to others.
5. Mr.Asif Ali Abdul Razzak Soomro, learned counsel for the applicant, in support of his plea for protective bail, suspension of the proclamation issued against the applicant declaring him absconder and non-bailable warrants issued against him. has argued that no specific part has been assigned to the applicant Muhammad Hayat except that of ineffective firing. He further argued that applicant and co-accused Talib Hussain were released under section 169, Cr.P.C. as during the investigation they were proved to be innocent. However, on 27-7-2001 applicant had applied for protective bail before arrest as the case was transferred to Crime Branch, and applicant was apprehending his arrest before approaching the Sessions Court, but after grant of protective bail he did not approach the Sessions Court as he was satisfied with the investigation.
6. Learned counsel has further argued that on 28-8-2001 Crime Branch also recommended for deleting the name of the applicant from the challan and in the final Challan submitted before the trial Court, applicant's name was not included as an accused. However, the case diary dated 16-3- 2000- shows that applicant was declared absconder by the trial Court. An application to stop proceeding against him before the learned trial Court was filed but it remained undecided.
7. Learned counsel has, therefore, urged that protective bail be granted to him after suspension of the non-bailable warrants and the proclamation issued against -him so as to enable him to approach, the concerned Court for pre-arrest bail.
8. Since protective bail was granted at earlier occasion and the applicant has failed to approach the trial Court and since he has been declared as an absconder by the trial Court and on-bailable warrants have been issued against him hence notice was ordered to the learned A.A.-G. for 15-5- 2002. On that date, Mr. Ali Murad Abro, Advo ate alongwith complainant Haji appeared be ore this Court and prayed that complainant may also be heard before passing an order as he is an aggrieved person and applicant Muhammad Hayat has suppressed he facts particularly regarding rejection of pre-arrest bail application by the learned 1st Additional Sessions Judge Larkana after considering the merits of case on 2-6-2001 as such he may be allowed to address the Court as to whether the applicant is entitled for the relief prayed by him. In support of his contention, Mr. Ali Murad Abro has argued that it is a preplanned murder in which a young doctor has lost his life and others have sustained injuries. The manner in which the incident taken place clearly shows that each of the accused is vi variously liable. In support of his contention he has placed reliance on the case of Khadim Hussain and 5 others v. Sher Afzal a d another (2000 PCr.LJ 974) decided by supreme Court Azad Jammu and Kashmir. Learned counsel has further argued that t e applicant was fully aware of the proceedings against him and after observing all the formalities required under section 87 a d 88, Cr.P.C. he has been declared absconder. There is unexplained noticeable abscondence of accused, which is sufficient to disentitle him to the concession of bail notwithstanding merits of the case. In this connection: learned counsel has laced reliance on the case of Suhrah v.The State (2001 PCr.LJ 366). Mr. Abro has further sought support from the case of Karim Bux v. The State (2000 SCM R 1405). Where Supreme Court had declined interference in the order of the High Court refusing the bail to accused who had been at large for about more than 5`months despite the rejection of his prayer for pre-arrest bail by the High Court. Learned counsel for the complainant, has placed on record a copy of order in Criminal Pail Application No,391 of 2001 to show that the pre-arrest bail application of applicant Muhammad Hayat and accused Ghulam Nabi was rejected by the learned 7th Additional Sessions Judge, Larkana on 2-6-2001 after considering the merits of case. This fact of rejection of pre-arrest bail application by a Court of competent jurisdiction has been suppressed by the applicant in this application and it is itself sufficient to decline the relief claimed in this application. Learned Asst.A.-G has also vehemently opposed the plea for protective pre-arrest bail. He had argued that a fugitive from law does not deserve any concession. He has also argued that proceedings under sections 87 and 88, Cr.P.C. having been taken and the applicant being fully aware that he is required in this case has been absconding in order to defeat the process of law.
9. I have given due consideration to the arguments of the learned counsel for the applicant, learned counsel for the complainant and learned Asstt. A.-G. I have also perused the case law cited at the bar. Protective bail is a facility which is provided by the Courts in appropriate cases to enable a person who is required in any case and not being allowed by the police to approach the concerned Court to surrender before that Court without being intercepted by the police and to put up his case for pre-arrest bail before the Court having jurisdiction. Unfortunately lot of misuse of such concession and indulgence shown by the Court is being taken in many cases. The conduct and behaviour of the applicant that he suppressed the fact of filing pre-arrest bail (No,391/2001) and its rejection on 2-6-2001 on merits is itself sufficient to decline the exercise of discretion in his favour. It was for the applicant to have moved/approached the High Court after rejection of his pre-arrest bail on 2-6-2001 but he preferred not to do so and applied for protective pre-arrest bail which, was granted on 2-7-2001 for a period of ten (10) days, however, he did not surrender before the trial Court and has again applied for protective bail, suspension of non-bailable warrants and the proclamation issued against him by the learned trial Court till 10-5-2002. Suppression and concealment of facts is itself a ground to refuse to exercise any direction in favour of an accused, and on this score as well the rule laid down by the Supreme Court of Pakistan in Karim Bux v. The State (supra) stands fully attracted. Hence no case for grant of protective bail or suspension of the non-bailable warrants or proclamation order declaring the applicant as absconder is made out.
6. By a short order dated 17-5-2002 this application was rejected and these are the reasons for the same.