1. ' This is an application for pre-arrest bail filed on behalf of applicants Allah Dino, Abdul Rehman, Abdul Sattar, Uris, Ghulam Mustafa, Akbar and Shamsuddin in a case under sections 324, 337-F(i)
2. (ii), 148 and 149, P.P.C. Registered at Police Station, Mirokhan by F.I.R. No, 47 of 2002, dated 27-5-2002 at 11-30 hours. After lodging of the F.I.R. The applicants preferred an application in the Court of Session for grant of pre-arrest bail, but their application was dismissed on 6-8-2002 by the learned 1st Additional Sessions Judge, Larkana whereas bail plea of the co-accused Abdul Rehman was accepted as his case was distinguishable from the case of present applicants. The applicants have moved similar application before this Court against the impugned order.
3. ' The prosecution case is that one Ali Sher Magsi lodged his F.I.R. Alleging therein that on 25-5-2002 at about 7-00 p.m. He alongwith Jan Muhammad, Haji' Baig, Karim Bux were crossing near the lands of Akbar Magsi and saw accused Ghulam Mustafa armed with rifle, Akbar with gun, Abdul Rahim armed with gun, Allah Dino, Abdul Rehman, Abdul Sattar, Uris and Shamsuddin were armed with hatchets. As soon as the complainant party reached near to them Ghulam Mustafa raised Lalkara' and stated as to why they have come to their lands and they shall not be spared, by saying so Ghulam Mustafa fired straight with intention to kill complainant and in consequence of accused Ghulam Mustafa fired and complainant sustained injuries on his thumb of left hand and co-accused Akbar straightly fired from his gun at Jan Muhammad which hit him on his head and other accused also fired from their guns and complainant party due to fear of firing made by the accused lying on the ground. It is further stated in the F.I.R. That other co-accused having hatchets gave hatchet blows to Haji Beg and Karim Bux, they sustained hatchet injuries on head and other parts of the body. The complainant party raised cries in order to scare them in the name of Holy Qur'an and then accused ran away and the complainant took the injured witnesses to medical aid to Larkana and then approached his Nekmard and narrated the incident who told the complainant to lodge the report. It is further narrated in the F.I.R. That accused had caused them injuries as they were crossing from the lands of accused persons. The applicant Akbar had also lodged a report being Crime No, 46 of 2002 for the same incident on 26-5-2002 in which applicant's brother Muhammad Anwar was murdered by the complainant party and in that incident Akbar's father Ghulam Mustafa and P.W. Abdul Rahimn have sustained injuries.
4. ' Learned counsel for the applicants submits that there are cross-cases on the side of applicants and there is dispute between the parties and both parties have lodged their F.I.Rs, and the place of incident, date of incident and time of incident is same. It is further urged by the learned counsel that there is delay of 40 hours for lodging of the F.I.R. And no explanation has been given by the complainant while lodging the F.I.R. It is further argued by the learned counsel that the challan was submitted in the Court of law on 4-7-2002 and thereafter on 17-7-2002 an application was moved to District Police Officer, Larkana for reinvestigation, which was forwarded to the Investigating Agency for further probe and in pursuance of the directions for reinvestigation a report has been filed in the Court of Judicial Magistrate on 27-7-2002 by declaring accused Allandino, Abdul Rehman, Uris and Shamsuddin as innocent and no orders have been passed by the Judicial Magistrate while sending the report to the Sessions Court nor any order has been passed by the learned Sessions Judge on such reinvestigation report. Learned counsel for the applicants in support of his arguments has relied upon case of Muhammad Ashraf and another v. State 1982 PCr.LJ 1286, Aftab Khan v. Haamid Hussain and another reported in 1995 PCr.LJ 552, Taja alias Tajo v.
5. State 1975 PCr.LJ 1265 and Dr. Muhammad Shoaib Suddle, D.I.-G. Police, Karachi and others v. State 1997 SCM R 1234.
6. ' Conversely Mr. Ali Azhar Tunio, learned Assistant Advocate-General has opposed the bail application on the ground that in both the F.I.Rs, facts have been suppressed by both the parties and they have not given their occurrence and receipt of injuries in both the F.I.Rs, Learned A.A.-G.
7. Has pointed out that according to the memo: of bail application in para. No,7 it is stated by the applicants' counsel that on the complaint of applicant, District Police Officer ordered for re-enquiry and the four applicants have been found innocent, but the complainant has mala fidely implicated them all the male members of the same family. Learned A.A.-G. Further submits that the challan of the case was filed on 4-7-2002 and reports filed by the other Investigating Officers are simple observations and it cannot be believed unless the case is tried by the trial Court about their innocence. It is further stated by A.A.-G. That in para. No,9 of the grounds it is alleged that the complainant party mala fidely by paying handsome amount to police not only have succeeded in lodging belated counter-F.I.R. But at their instance police have raided the house of the applicants for their arrest on so many times and if arrested they shall be humiliated. It is further stated by the learned A.A.-G. That the delay has been explained as the complainant Ali Sher has also sustained injuries at the time of incident and other witnesses Jani Beg, Karim Bux and Jan Muhammad sustained injuries and they approached the police for registration of the F.I.R. From where they were referred for medical examination. Thereafter, the F.I.R. Was lodged at Police Station, Mirokhan because the jurisdiction with regard to the commission of offence and there was no raid made by the police at the house of the applicants. Learned A.A.-G. In support of his proposition has relied upon cases of Badshah Gul v. State and another 1999 PCr.LJ 691 and Murad Khan v. Fazal-e- Subhan and another PLD 1983 SC 82.
8. ' Mr. Asif Ali Abdul Razak Soomro, learned counsel for the complainant has adopted the arguments placed by learned A.A.-G. But in order to supplement more arguments it is stated that in Crime No,46 of 2002 lodged by accused/applicant Akbar Ali being complainant has admitted that there is disputes with Abdul Rasool Magsi over the land and the applicant/accused had come to the said land and caused injuries to the complainant as well as three other witnesses and no F.I.R. Was lodged in respect of the earlier dispute over the land, but on the day of incident the accused/applicants being armed with weapons challenged the complainant party to leave the land and as such caused the injuries to the complainant party.
9. ' I have heard the learned counsel for the parties at sufficient length and have gone through the record placed on record.
10. ' I would first take up precise facts as narrated in Crime No,46 of 2002 lodged on 26-5-2002 at 6-00 hours whereas the incident has taken place on 25-5-2002 at 7-00 p.m. Under sections 302, 148, 149, 324 and 337-A(ii), F(i), P.P.C. The complaint is that there is dispute over the land with Abdul Rasool Magsi and on the day of incident his brother Muhammad Anwar father of Ghulam Mustafa, uncle Abdul Sattar and cousin Abdul Rahim were working in their land in Deh Kandi when at about 7-00 p.m. Accused Abdul Rasool, Alisher, Ashiq Ali, Wali Muhammad, Ali Khan, Pathan, Gulsher, Gulzar, Sono and Haji Akram and three unidentified persons armed with guns, rifles, hatchets and Lathis arrived there and they challenged to leave the land. On such accused Alisher fired at Muhammad Anwar with intention to commit murder which hit him on his right side of his frontal bone under the arm pit and mouth and fell down, Abdul Rasool and Pathan fired from their guns with intention to commit murder at Ghulam Mustafa which hit on his paw and fell down and other accused armed with hatchets and Lathies caused hatchets and Lathi blow to Rahim Bux. The complainant party raised cries which attracted people of the village and then accused decamped towards the village alongwith weapons the complainant saw Muhammad Anwar having several injuries and was bleeding and was found dead whereas Ghulam Mustafa and Abdul Rahim had sustained injuries and due to non-availability of conveyance and late hours the injured complainant and injured witnesses left to their village and then approached the police for lodging the report on the next day. According to the Crime No,47 of 2002 it is stated that the complainant alongwith Jan Muhammad, Haji Beg, Karim Bux while crossing the land of Akbar Magsi the applicant alongwith co-accused duly armed with rifle, gun and hatchets caused injuries to Jan Muhammad, Karim Bux, Jani Beg and complainant Alisher. In both the F.I.Rs, the accused and the complainant party had not accepted their presence and receipts of injuries in both the F.I.Rs, The applicants cannot. Take any benefit from their own F.I.R. When they have not admitted to the extent that there was a counter-case. The challan was submitted against the applicants/accused on 4-7-2002 on the basis of evidence of injured complainant and three injured witnesses corroborated by medical evidence. The re-investigation report submitted on 27-7-2002 cannot be considered as a solid proof that the accused/applicants are innocent. It is now well-established rule that the opinion of the police which has been recorded during the course of investigation and reinvestigation can only be looked into at the time of B trial, but not at the stage of bail application. There are two F.I.Rs, but it cannot be presumed that there are cross-cases and it is for the Court after recoding of the evidence by reaching in conclusion after evaluating the evidence of the parties can form the opinion that there is cross-case and counter-case between the parties. The P. Ws. Jani Beg, Karim Bux, Jan Muhammad and complainant Ali Sher being the witnesses of the incident are in jail in Crime No,46 of 2002. According to the F.I.R. And material collected during the course of investigation, all the applicants are nominated in the F.I.R. And specific role of causing injuries is assigned to them. No doubt there is some delay in lodging of the report.
11. ' Actually the complainant and the P.Ws. Have suffered the injuries at the time of injuries and medical certificate has not been challenged before the I competent Authority about its genuineness and it cannot be said at this stage that they have manipulated a false medical certificate. For grant of pre-arrest bail there is famous announcement of a case Murad Khan v.
12. Fazal-e-Subhan and another reported in PLD 1983 SC 82 and in view of the said pronouncement three principles have been laid down which are to be strictly followed. The view taken in the cited case has been considered in number of authorities in cases of Ali Muhammad v. Yamin and another 1981 SCM R 1139, Ch. Zahur Ilahi v. State 1981 SCM R 935, Crown v. Khushi Muhammad PLD 1953 FC 170. The same authority has been considered in cases of Muhammad Ayyub v. Muhammad Yaqub, Muhammad Sahfiq and another v. The State, Rao Qadeer Khan v. The State. Muhammad Azam and another v. The State and Sardar Muhammad and others v. The State. The grant of pre- arrest bail can only be extended if there are ulterior motives, humiliation and unjustified harassm ent and prosecution is motivated by malice so as to cause irreparable loss to a citizen's reputation and liberty. While looking to the both F.I.Rs, in Crime Nos, 46 of 2001 and 47 of 2002 both parties have not disclosed about inflicting the injuries to the other side. In view of the foregoing resume of the case-law and merit of the case no ulterior motives have been shown for their false implication in both the F.I.Rs, as both the parties have suppressed happening of incident of both cases.
13. ' I am of the view that this is not a fit case for grant of anticipatory bail, but after surrendering them in the trial Court the applicants would be at liberty to urge the point of counter-case and consequently bail application is dismissed.
14. Pre-arrest .