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‑‑ Art. 185(3) read with Criminal Procedure Code (V of 1898), S. 498 and Penal Code (XLV of 1860), S. 302‑Bail before arrest‑Appeal against ‑Circumstances under which pre‑arrest bail can be granted Grant of pre‑arrest bail in serious case like murder‑Held, should be rare‑Accused duly named by deceased in F. I. R. as one of assailant who fired and injured deceased‑‑Motive for crime and fire arm injuries broadly supported by medico‑legal and post‑mortem reports‑Dying statement of deceased constituting F. I. R. can form basis of conviction‑Co‑accused still absconding‑Held, pre‑arrest bail in circumstances not deserved‑Discretion in granting pre‑arrest bail not used by Courts below in accordance with object and purpose of law on subject‑Converting leave petition into appeal, orders passed by Court of Session and High Court set aside and bail cancelled.

Muhammad Shahbaz Khan and 2 others v. The State 1978 S C M R 432 and Aurangzeb v. State 1977 S C M R 519 ref.

K. G. Sabir, Advocate Supreme Court instructed by M. Qasim Imam, Advocate‑on‑Record (absent) for Petitioner.

Nur Ahmad Khan, Advocate‑on‑Record for Respondent No. 1.

Muhammad Ajmal, A. A.‑G. (N.‑W. F. P.) for the State.

Date of hearing : 30th March, 1983.

.‑The petitioner is aggrieved by the grant of pre‑arrest bail to respondent Shah Muhammad, who is one of the two persons accused of the murder of his brother Fazl‑e‑Raziq deceased. The F. I. R. in the case had been lodged by the deceased himself, in which he had stated that pp 23‑7‑1981 at digarwela when he was going to a shop for making purchase he met, on the way, Aurangzeb and Shah Muhammad with whom he had altercations a few days before, that they were armed with pistols and that they abused him and simultaneously fired from their weapons hitting him on the right hand and at the abdomen. He had cited Abdur Rehman and Shamroz as eye‑witnesses to the occurrence. The medical evidence showed the presence of injuries on the right band and the abdomen. The deceased died on 21‑8‑1981. According to the post‑mortem report, the death had been due to shock from peritonitis, and infection of abdominal organs.

2. Shah Muhammad respondent applied to the Court of Session, Mardan, for pre‑arrest bail on 22‑6‑1982 and was granted an interim pre‑arrest bail the same day, which was later confirmed by that Court on 7‑9‑1982 for the reason mainly that the two eye‑witnesses cited in the F. I. R. had not come forward to support the case. The petitioner moved the High Court for cancellation of the bail but his application was dismissed on 23‑2‑1983 for the same reason that the dying declaration was not being supported by the eye witnesses named in the F. I. R.

3. We have heard learned counsel for the petitioner, as also learned counsel for the respondent and the learned A. A.‑G. Peshawar who are present in response to notice. Shah Muhammad had been duly named in the F. I. R. as one of the assailants who had fired at and injured the deceased. The motive for the crime bad also been given by the deceased and the presence of fire‑arm injuries is broadly supported by the medico‑legal and post‑mortem reports. Since a dying statement in regard to cause of death of its make is relevant and if duly proved and admitted into evidence, stands on the same footing as any other evidence, and since it is legally possible to base a conviction on such statement alone, it cannot be said that the statement of the deceased constituting the F. I. R. in the present case could not make out a prima facie case against the respondent merely because the eye witnesses named therein had not offered to support the same. In fact as appears from the order of the Court of Sessions, the statement of the eye witnesses under section 161, Cr. P. C., had not even been recorded by the police. The grant of a pre‑arrest bail to a person can be considered if no prima facie case is made out against him or his involvement is apparently false or for ulterior motive or his arrest is otherwise unjustified or is likely to cause irreparable harm to him. The grant of pre‑arrest bail in a serious case like murder should, therefore, be rare. In Muhammad Shahbaz Khan and 2 others v. The State (1978 S C M R 432) where in a case under sections 307/379/149 and 148, P.P.C., the accused had allegedly caused many injuries including fire‑arm in juries to the opposite‑party after arming themselves with deadly weapons, this Court had ruled that there was no question for grant of pre‑arrest bail. We are also told that the co‑accused is still absconding. In these circumstances, the grant of pre‑arrest bail was not deserved.

4. The grant of bail is a matter in the discretion of the High Court, with which discretion this Court as reiterated in Aurangzeb v. State (1977 S C M R 519) has always been reluctant to interfere. But here the discretion, we find, has not been used in accordance with the object and purpose of the law regulating grant of pre‑arrest bail.

5. We, therefore, convert this petition into appeal and allow it In‑the result, the orders passed by the High Court dated 23‑2‑1983 and the Court of Session, Mardan, dated 7‑9‑1982 are set aside and the bail allowed to Shah Muhammad respondent is cancelled. This will, however, not debar him from moving for bail after arrest in. proper time.

S. Q. Bail cancelled.

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