' By this order I intend to dispose of criminal bail application filed on behalf of the applicant Syed Inam Shah in a case bearing crime F.I.R. No,38 of 2001 Police Station Civil Lines, Jacobabad for offence under sections 337-A(ii), 342, 147,.148 and 149, P.P.C. The application for pre arrest bail was declined by the learned lower Court vide order dated 15-5-2001.
' That from the prosecution story as disclosed in the F.I.R. It appears that on 9-5-2001 at about 9.15 p.m. Complainant Syed Tajal Shah approached Incharge Police Station Civil Lines, Jacobabad and lodged F.I.R. Alleging therein that on the same day at about 8-00 p.m. As he was present in his house alongwith his kith and kin when 1. Inam Shah,
2. Makhan Shah, 3.Akbar Shah,
4. Sikandar Ali Shah all the four sons of Sharif Shah being armed with Lathis and their relatives namely 5. Baban Shah alias Sattar Shah,
6. Hassan Shah both sons of Sarwar Shah and 7. Abdul Razzak Shah who were also armed with Lathis entered in the house of Anwar Shah. On coming they abused the family members of the complainant Syed Tajal Shah namely Mst. Khair Bibi, Mst. Hakimzadi and Mst. Khan Bibi and started giving Lathis blows to them, on which they raised commotion but in the meanwhile accused dragged Mst. Hakimzadi from her arms and was taken out of the house and while dragging Mst. Hakimzadi they expressed that she may be locked in the room. Mst. Hakimzadi went upon crying. After the disappearance of accused, complainant found himself having sustained injuries on his head and other parts of the body and was bleeding. His wife namely Mst.
Khair Bibi had sustained injuries on head, arms and other parts of the body. Mst. Khan Bibi the daughter of complainant had sustained injuries on head and other parts of the body. The injured ladies were bleeding from their injuries. Mst. Hakimzadi was also dragged towards the house of Makhan Shah. The complainant thereafter approached at police station where he recorded the F.I.R. As above. The motive disclosed in the F.I.R. Appears to be a matrimonial dispute.
' Following the investigation all the accused were arrested by police excepting the present applicant who later on had applied for pre-arrest bail before the learned Sessions Judge, Jacobabad and by an order dated 15th May, 2001 the request for grant of pre-arrest bail was declined on the grounds that the accused making themselves duly armed caused injuries to the complainant and his wife Mst. Khair Bibi and other relatives namely Mst. Hakimzadi and Mst. Khan Bibi and further that the applicant was not able to substantiate his case on the plea of mala fides.
Thereafter, learned counsel for the applicant had approached for pre-arrest bail before this Court and by an order dated 21-5-2001 the applicant was granted interim bail which is the subject- matter of confirmation before me.
' I have heard the learned counsel for the respective parties and perused the record. It has been contended by the learned counsel for the applicant that it is a case of general allegations and no specific part is assigned to the applicant. According to him, there are four injured persons namely complainant Syed Tajal Shah.
2. Mst. Khan Bibi daughter of complainant,
3. Mst. Khair Bibi wife of complainant and 4. Mst.
Hakimzadi wife of Ghulam Shah. It has been further contended by the learned counsel for the applicant that as far Syed Tajal Shah is concerned he sustained two injuries, Mst. Khan Bibi sustained one injury, Mst. Khair Bibi sustained five injuries and Mst. Hakimzadi also sustained five injuries. It has also been argued by the learned counsel for the applicant that all the injuries were caused by means of Lathies and the punishment provided is up to seven years which according to him goes out of the prohibition as contained in section 497 (1), Cr.P.C. Besides this, he has also argued that applicant is a patient suffering from cardiac disease and that his right arm has been operated upon and thereafter Iron Rod has been affixed in the right arm and lastly the operation of his brain was also carried out. On all these scores it has been urged by the learned counsel for the applicant that interim bail granted earlier be confirmed or. The same terms and conditions.
Learned counsel for the applicant has referred to the case of Syed Sultan Shah and another v. The State (2001 P.Cr.LJ 112) in support of his contentions.
' Conversely learned counsel for the State while arguing opposed the confirmation of bail on the ground that the applicant had acted in such a way that he making himself duly armed had caused multiple injuries to the complainant and the other inmates of the house resulting as many as 13 injuries and that the offence is punishable upto seven years. Besides this, he has also argued that it is a case where no mala fides are alleged.
' I have given my anxious consideration to the arguments of the learned counsel for the respective parties and perused the record. It has been held time and again that bail after arrest and bail before arrest are entirely on different principles. Bail before arrest has to be granted in very exceptional circumstances where the involvement of the applicant is due to mala fide and ulterior reasons and those mala fides should be alleged specifically. In the instant case learned counsel for the applicant has failed to substantiate his case on the above aspects. It has been further explored that right of pre-arrest bail is rare and very limited which could be extended in a very strong and exceptional circumstances and the same are based on mala fides/enmities. The reference could be made to the cases of Muhammad Afzal v. The State (1997 SCM R 278), Muhmmad Saeed v. The State (PLD 1999 Kar. 345) and Muhammad Azam v. The State (1996 SCM R 71). In the above cited cases the offences were punishable upto seven years yet the bail before arrest was declined.
In continuation of the above proposition it has also been held that mala fides and the involvement of the petitioner due to ulterior motives should be alleged specifically though not required to be proved but in the instant case no mala fides were alleged specifically. The most authoritative decisions in this regard which could be relied upon with certitude are the cases of Muhammad Murad Khan v. Fazal-e-Sultan and another (PLD 1983 Supreme Court 82) and the case of Ziaul Hassan v. The State (PLD 1984 Supreme Court 192).
' The contention of the learned counsel for the applicant regarding his illness that he is suffering from Cardiac disease, his right arm has been operated upon and thereafter an iron rod has been affixed in the right arm. Besides this, an operation of the brain in respect of the applicant was carried out. In order to substantiate the claim of learned counsel for the applicant it would be just and expedient to come across the documents namely Annexures C, D, E, F, G and H which have been produced by the learned counsel for the applicant alongwith this bail application. Perusal of all these documents makes it abundantly clear that the applicant was not suffering from any kind of disease which could be termed as dangerous to life or health of the applicant. There was nothing to show that the applicant was operated upon and thereafter an iron rod was affix in the right arm. Lastly, there is also nothing to show that the operation of brain was also carried out. The claim of the applicant that he is suffering from enormous problems is cock and bull story.
' Coming to the last ground that the offence is punishable up to seven years which goes out of the prohibition as contained under section 497 subsection (1), Cr.P.C. In such cases the grant of bail is a rule and refusal thereof an exception. It is well-settled that each case has its own facts and circumstances. There is no hard and fast rule that in every case where the offence is not covered by prohibited clause, the bail can be granted as rule of thumb. There could be numerous examples in this regard. The most prominent and famous could be a case of Muhammad Afzal v. Abdullah and another (1997 SCM R 281) wherein 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 (1), 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."
For what it has been discussed above, I am of the view that the applicant Syed Inam Shah has not been able to make out a case for confirmation. The interim order granted earlier by this Court on 21-5-2001 is hereby recalled: The applicant is directed to surrender before the learned trial Court for taking into custody.
Pre-arrest .