MUHAMMAD AFZAL SOOMRO, J.- By this order I propose to dispose of an application for bail in anticipation of arrest, in respect of applicant Sikandar Janwari, in a case bearing crime No. 97/2000, Police Station Dhamrah for an offence under Section 382, P.P.C. The applicant, by an order dated 28.5.2001 was granted interim pre-arrest bail which is now fixed for confirmation or otherwise.
2. The prosecution story as enunciated in the F.I.R, is that on the eventful night i.e. 20.11.2000 at 4 p.m. Complainant Niaz Hussain Kalhoro appeared at Dhamrah Police Station alleging that he along with his family members used to live in village Areeja with his kith and kin. He used to manage tea stall/hotel at Mahi Makol road in Areeja town. His stall is equipped with T.V., VCR and Deck. The P.C.O. Telephone is also available in the stall. The stall is being managed by labour Sikandar AN and his brother Riyaz Hussain. Some times they used to sleep at the Hotel. The hotel used to function up to 12 O'clock mid night. Ten days prior to the incident complainant along with labour Sikandar Ali and his brother Riyaz Hussain locked the hotel and went into bed. Since it was lot, one of the door of the hotel was kept open. The electric bulbs were glowing outside and inside the shop. Suddenly they heard commotion on which all the three woke up. It was 3 a.m. Night when they identified four persons on the light of bulbs. They were Zulfiqar, Lai Dino, Sikandar and Hakim, all Janwari by caste.
They were armed with guns. Accused Zulfiqar and Sikandar removed T.V. From the Table whereas the remaining two Lai Dino and Hakim took VCR. Thereafter they also removed wooden box in which an amount of Rs. 3/4 hundred rupees relating to daily income, was lying. The accused thereafter came out of the Hotel along with robbed articles and on the light of bulbs they saw and identified two more unknown strangers whose faces were open, they were armed with guns and were seen clearly by them and could be identified when seen. The accused thereafter decamped from the scene of offence, It is said that the complainant party could not follow the culprits due to scare, In the morning complainant and his brother Riyaz Hussain along with his labour Sikandar Ali met Ghous Bux elder brother of accused Zulfiqar to whom the facts were narrated and they informed him about the incident mentioned above. Thereafter Ghous Bux approached the complainant not to inform the police as they were prepared to return the robbed property to the complainant. The F.I.R, further shows that the complainant party was kept on procrastination for return of the property up to ten days and ultimately refused to hand over the property which constrained the complainant for registration of F.I.R. The investigation followed and in due course the applicants were sent up to stand trial in the Court of law.
Heard Mr. Nisar Ahmed G. Abro the learned counsel for the applicant and Mr. Mushtaque Ahmed Abro for the State, It has been contended by the learned counsel for applicant Sikandar that the F.I.R, is belated by ten days and no satisfactory explanation is forthcoming. The night of incident was dark and the identification on the light of bulbs was insufficient. The involvement of the applicant was due to mala fides and ulterior reasons so as to falsely implicate the applicant in the false case of this nature. The robbed property has not been recovered. According to him, the offence is punishable up to seven years and the ingredients of Section 382, P.P.C, are not. Attracted, In this background learned counsel for the applicant states that it is a fit case for confirmation of interim bail being granted earlier to the present applicant. Learned counsel has referred to a case of Muhammad Sardar and another v. State, reported as PLJ 1974 Criminal (Lahore) 521 in support of his contentions and states that the facts and circumstances of the referred case are very close to the facts and circumstances of the case in hand.
3. On the other hand, it has been contended by learned counsel for the State Mr. Mushtaq Ahmed Korejo, that the F.I.R, though belated by ten days, sufficient explanation has been given in the F.I.R, inasmuch as according to F.I.R, the applicant and his associates were approached by the complainant party time and again but accused party kept the complainant party time on procrastination and ultimately refused to hand over the robbed articles which constrained the complainant to register the F.I.R, according to the learned counsel for the State, the delay in F.I.R, is well explained. The identification of the culprits was made on the glowing light of the bulbs and as such there could be no mistaken identity of the culprits at the scene of offence. The names of the culprits are mentioned in the F.I.R. He further submits that besides complainant there are two more eye-witnesses of the occurrence and they have clearly seen and identified the culprits. As far the offence under Section 382, P.P.C, is concerned that is punishable for ten years and is covered by the prohibitory clause of Section 497(1), Cr.P.C. Reference is made to a case Muhammad Afzal and another v. The State, reported as PLJ 1997 Supreme Court 1917. In the cited case bail was declined by the Supreme Court in a case of Section 1 6, Zina Hudood Ordinance which was punishable for seven years.
4. I have given my anxious consideration to the arguments submitted by counsel for applicant as well as for the State. For the purpose of ad-interim bail the applicant/accused has to satisfy the Court regarding his involvement due to mala fide and ulterior reasons which under the law are to be specifically attributed, It has been held time and again that the grant of bail before arrest, in a case has to be made where the party has to show that the involvement of the applicant is due to the reason that the prosecution has been motivated for some ulterior reasons. However learned counsel for the applicant was not in a position to satisfy the Court on the ground of mala tides. The reference is made to the case of Muhammad Murad Khan v. Fazal-e-Sultan and another (PLD 1 983 Supreme Court 82), Zia-ul-Hassan v. The State (PLD 1984 Supreme Court 192), Muhammad Azam v.
The State (PLD 1996 SC 71), Muhammad Afzal and another Vs. Abdullah and others (1997 SCMR 278) and Muhammad Saeed v. The State (PLD 1999 Karachi 345).
5. In the case of Muhammad Murad Khan (supra) it was held by the Hon'ble Supreme Court as under:- "S. 498-A. Pre-arrest bait- Conditions for grant of prearrest bail; arrest being for ulterior motives such as humiliation and unjustified harassment, prosecution motivated by motive so as to cause irreparable injury to reputation and liberty, motivation of Police on political consideration."
In the case of Zia-ul-Hassan (supra) it was held by the Hon'ble Supreme Court that the 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 tides which must be specifically stated, It is in this context also that other condition of irreparable loss is to be viewed, In the case of Muhammad Azam (supra) it was held by the Hon'ble Supreme Court as under:- "S. 498--Pre-arrest bail- Right of pre-arrest bail is limited to exceptional and rare cases which are based on mala fides/enmity or where no offence is shown to have been committed on the bare reading of F.I.R."
In the case of Muhammad Afzal (supra) it was held by the Hon'ble Supreme Court as under:- "--S. 497--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 16--Offence not falling within the prohibitory clause of S. 497(1J, Cr.P.C.-- Accused not entitled to bail as a matter of course--Mere fact that the offence with which the accused was charged does not fall within the prohibition contained in S. 497, Cr.P.C, does not mean that he is entitled to be released on bail as a matter of course."
In the case of Muhammad Saeed (supra) it was held as under:- "-S. 497. Bail may be refused in cases not falling within the prohibitory clause of S. 497, Cr.P.C." Bail can be declined in exceptional and extraordinary cases where the alleged offences carry imprisonment of less than ten years. Such exceptional and extraordinary circumstances would be available where the crime as alleged is directed against the Society at large."
In all these citations it was held that mala tides, and ulterior motives must be alleged specifically, though not required to be proved. But in the case in hand, learned counsel for the applicant has failed to allege mala tides specifically in the light of Supreme Court decisions.
For what has been discussed above, I am of the view that applicant Sikandar Janwary has not been able to make out a case for bail before arrest and in the circumstances order dated 1.6.2001 granting pre-arrest bail is recalled. He is directed to surrender before the learned Trial Court for being taken into custody.
6. I have come across the orders granting bail to co-accused Lai Dino s/o Ghous Bakhsh Janwari, Hakim s/o Dildar Janwari passed by the learned Trial Court, i.e. IInd Additional Sessions Judge, Larkana, vide dated 13th, 14th and 21st April, 2001, respectively and an order granting bail to Zulfiqar Ali s/o Ghulam Janwary passed by the learned IIIrd Judicial Magistrate Larkana vide order dated 21.2.2001. In my view the order granting bail to accused Lai Dino, Hakim and Zulfiqar Ali are not based on the proper appreciation of law. Issue Show-Cause Notice to the above-stated accused as to why the orders granting bail to them may not be recalled.