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Miscellaneous Application No. 761 of 1984, decided on 14^th October, 1984.

‑‑‑Ss. 498 & 497(5)‑‑Anticipatory bail, cancellation of‑‑Respondent allegedly instigating co‑accused and causing fist and kick blows to injured prosecution witness‑‑Role assigned to respondent in direct complaint different but admitting him being empty‑handed‑‑Respondent escaped arrest by Police but for Court's order granting him pre‑arrest bail and complainant still keen to see respondent in jail‑‑Mala fide on part of complainant, held, manifest and as such condition for grant of pre‑arrest bail fulfilled‑‑Interference with exercise of discretion of Sessions Judge, in granting anticipatory bail to respondent declined in circumstances.

P L D 1983 S C 82; P L D 1984 S C 192; 1981 S C M R 1139; 1982 S C M R 384; P L D 1966 S C 23; 1982 S C M R 57; 1984 SCMR 119; 1980 S C M R 269; 1984 P Cr. L J 2400; 1983 P Cr. L J (Shariat Court) 25; P L D 1981 Lah. 509; P L D 1983 S C 82; Muhammad Safdar and others v. The State 1983 S C M R 645; Zia‑ill‑Hassan v. The State P L D 1984 S C 192; 1984 P Cr. L J 2400 and Hidayatullah v. Abdul Hameed and others 1984 SCMR 119 ref.

Aftab Ahmad Akhund for Applicant.

M.H. Junejo for Respondents.

A.A. Muhammad Ally, A.A.‑G. for the State.

Dates of hearing: 19th, 26th, 30th August, 14th and 16^th September, 1984.

This Application under section 497(5), Cr.P.C. has been filed by complainant Pir Ghulam Sadiq Jan in a case registered under sections 302, 307, 34, 504, P.P.C. at Police Station, Tando Muhammad Khan (Crime No. 67/84).

The respondent, Pir Muhammad Saeed Jan Sarhandi, has been granted anticipatory bail by Sessions Judge vide order dated 17th July, 1984. Being aggrieved with the order the petitioner filed this application for cancellation of bail of Respondent Pir Muhammad Saeed Jan.

2. Briefly stated the facts of the prosecution case are that on 4th June, 1984 Pir Ghulam Siddiq went to the mosque for offering Taravi prayers. At about 12‑30 a.m. his son Ajmal Jan came and informed him that his brother Atiqullah Jan has been hit by Saeedullah Jan while he was offering Taravi prayers in the mosque. He was further told that Atiqullah Jan made a complaint to him and his brother Ghulam Raider Jan. It is stated that Ghulam Haider Jan told Saeedullah Jan that they should not quarrel with Atiqullah Jan and after that Ghulam Haider Jan went to the bungalow of his uncle Ghulam Mohiuddin where he met his cousins Abdul Razzak and Abdul Rashid Jan. After about a short while Wali Muhammad Jan and Sajjad Ahmad Jan suddenly came there and told him as to why he had rebuked Saeedullah Jan and thereafter they gave kicks and fists blows to Ghulam Haider Jan while Sajjad Ahmad Jan took out a dagger from the fold of his trouser and attempted to hit. At intervention of Pir Abdul Razzak Jan and Pir Abdul Rashid Jan he could not succeed in inflicting injuries to Ghulam Haider Jan. Immediately thereafter Abdul Rashid Jan son of Pir Muhammad Saeed Jan came and told complainant that he was required by his father at his bungalow. The complainant asked his son that he was going to bungalow of Pir Saeed Jan (Respondent) and he also came there alongwith Pir Ghulam Haider Jan, so that matter be settled.

The complainant reached at the bungalow of Pir Saeed Jan at about 11‑‑45 a.m. where he found Sajjad Ahmad Jan and Wali Muhammad Jan armed with daggers standing at the gate. There was sufficient light and the complainant identified them clearly. He enquired from Sajjad Ahmad Jan and Wali Muhammad Jan about the respondent Pir Saeed Jan who replied that Saeed Jan is sitting in the bungalow. He went inside where Muhammad Saeed Jan narrated the incident of quarrel and asked him as to why Ghulam Haider Jan abused his son Sajjad Ahmad Jan. In the meantime they heard commotion and cries from outside. Complainant went out and saw Wali Muhammad Jan and Sajjad Ahmad Jan had knives in their hands and they were fighting with Ajmal Jan and Pir Ghulam Haider Jan. In the meantime Pir Asghar Jan, Pir Ali Akber, Gul Hassan Magsi, Suleman Qasim and Muhammad Sadiq also came there. It is alleged that Pir Sajjad Jan gave knife blow on the chest of Ajmal Jan who fell down and Wali Muhammad Jan gave knife blow to Ghulam Haider Jan on the right side of the chest who also fell down. In the meanwhile Pir Muhammad Saeed Jan came out and abused Ghulam Haider Jan and gave him kicks and fists blows. On receiving injuries, Ajmal Jan went unconscious. Ghulam Haider Jan also sustained Knife blows on his chest and was bleeding. Ghulam Siddiq Jan complainant petitioner) took injured to police station but on the way his son Ajmal Jan died. The report of this incident was registered at 1‑15 a.m. by A. S. I. Police Station, Tando Muhammad Khan.

3. The respondent Saeed Jan was granted interim bail before arrest on 9‑6‑1984 by Mr. Imadad Ali Memon Incharge Sessions Judge. On 11‑7‑1984 the present applicant filed an application under section 497(5), Cr. P. C. in the Court of Sessions in which he prayed that ad interim bail granted to the respondent be cancelled. However, the learned Sessions Judge (Syed Abdur Rehman Shah) on 17th July, 1984 heard the application of cancellation as well as confirmation of the bail. He confirmed the bail of the respondent already granted by the Incharge Sessions Judge and the cancellation application was dismissed.

4. Complainant on 17‑6‑1984 filed a direct complaint against the respondent and other co‑accused. The learned Sessions Judge after examining main witnesses ordered that case be registered against the accused under sections 302/307 and 504 read with Section 34 and 114, P.P.C. He also observed in the order that formal process not be issued as the accused is already on interim bail before arrest granted by Sessions Judge.

5. I have heard Mr. Aftab Ahmad Akhund learned Advocate for the petitioner, Mr. Muhammad Hayat Junejo learned Advocate for the respondent and Mr. A. A. Muhammadally, learned Assistant Advocate- General for the State.

6. Mr. Aftab Ahmad Akhund has submitted that the pre‑conditions laid down by the Honourable Supreme Court for grant of anticipatory bail are not satisfied in this case therefore the order of the Sessions Judge is bad in law. His contention is that the F.I.R. of the applicant was not properly recorded by the police, for which applicant sent telegrams to the higher authorities and filed direct complaint in which it is stated that respondent has played major role in instigating the co‑accused and he also gave kicks and fists blows to deceased as well as the injured Ghulam Haider Jan. He has argued that respondent has failed to show any mala fide due to which Pir Saeed Jan has been implicated and that ocular evidence is corroborated by the post‑mortem notes which shows that deceased Ajmal Jan has a injury of kicks on his face which is attributed to respondent No.1. Mr. Akhund has relied on the cases reported in P L D 1983 S C 82, P L D 1984 S C 192, 1981 S C M R 1139, 1982 S C M R 384 and P L D 1966 S C 23 and submitted that respondent should not have been granted anticipatory bail in view of the case‑law cited above.

7. Mr. Muhammad Hayat Junejo learned counsel appearing for the respondent Pir Saeed Jan has submitted that the F.I.R. of the present case has been registered within 15 minutes after the incident in which it is mentioned that respondent caused kicks and fist blows to Ghulam Haider whereas injuries on Ghulam Haider Jan are shown to be of sharp‑edged weapon therefore there is a conflict between medical and ocular testimony. Mr. Junejo's contention is that mala fide could be considered from the circumstances of this case. He argues that it is clear that complainant after receiving the post‑mortem notes has filed direct complaint in which he has stated that respondent caused injuries on face of the deceased but this fact does not appear in the F.I.R. lodged immediately after the incident. He has relied on the injuries certificate of Haider‑ Jan and stated that in direct complaint it i5 specifically mentioned that respondent gave injuries to P.W. Haider Jan injured also, but medical certificate is contrary to that. His submission is that complainant /petitioner wants to see the respondent in jail due to mala fide intention. He has submitted that Saeed Jan respondent No. 1 is respectable citizen and was also Ex‑Member of Provincial Assembly of Sind. He being head of the family of co‑accused is being involved due to the grudge therefore the requirements of pre‑arrest bail have been fulfilled. Mr. Junejo has produced copies of the orders on bail applications Nos. 68/73, 730/83 and 626/84 of this Court and states that in the above cases bail before arrest was granted. Mr. Junejo has cited cases reported in 1982 S C M R 57, 1984 S C M R 119, 1980 SCMR 269 and 1989 P Cr. L J 2400.

8. Mr. A. Muhammadally, Assistant Advocate‑General appearing for the State does not support the cancellation application. He has submitted that mala fide could be spelt out from the circumstances of the case. He has relied on the cases reported in 1983 P Cr. L J (Shariat Court) 25 and P. L. D. 1981 Lah. 509. He further argues that the requirements of the anticipatory bail in the present case have been fulfilled and learned Sessions Judge has rightly exercised discretion in favour of the respondent No.1.

9. Now I proceed to deal with the contentions raised by learned counsel of the parties.

10. The principle for grant of anticipatory bail has been laid down by Supreme Court in a case of Murad Khan v. Fazle‑e‑Subhan and others, reported in P L D 1983 S C 82. Their Lordships have fully discussed the case‑law and observed that anticipatory bail can only be granted on the following circumstances:‑

(1) Arrest being for ulterior motives such as humiliation and unjustified harassment.

(2) Prosecution motivated by motive so as to cause irreparable injury to reputation and liberty.

(3) Motivation of police on political consideration.

This view has been endorsed in the cases of Muhammad Safdar and others v. State reported in 1983 S C M R 645 where it has been held that bail before arrest is not a rule in cognizable offence but can be allowed only when petitioner apprehended, arrest due to ulterior motive or some peculiar features justifying exercise of discretion in favour of Petitioner. In a case of Zia‑ul‑Hassan v. State reported in P L D 1984 5 C 192 it has been held 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 these all being that the intended arrest would be tainted with mala fides which must be specifically stated.

11. The legal position is very clear that law about the pre‑arrest bail is different than bail after arrest.

12. In this case while granting interim bail the learned Incharge sessions Judge, Hyderabad in his order dated 9‑6‑1984 observed as under:‑

"The name of the applicant of course appears in this F.I.R., but the accusation is that he merely abused injured Ghulam Haider Jan and gave him kick and fist blows. He is not alleged to be armed with any weapon nor he is said to have caused injury to the deceased'. The learned counsel stated that the applicant is a big Zamindar and respected person. According to him he is involved on account of enmity with the other side who are his close relations."

13. The learned Sessions Judge in his order dated 17‑7‑1984 while confirming the bail stated:‑

"A direct complaint has also been filed thereafter by the complainant against all the three accused on 13‑6‑1984 in which the facts of the F.I.R. have been, twisted and obviously on expert legal advice, it is further alleged that when the applicant came out with the complainant, he instigated his son and nephew in filthy language to kill Ajmal Jan and Ghulam Hyder Jan and thereupon Sajjad Ahmad Jan and Wali Muhammad Jan caused injuries to Ajmal Jan anti Ghulam Haider Jan. After both of them fell down on the ground, the applicant gave kick blows on the face of Ajmal Jan and fist blows on the person of Ghulam Hyder Jan.

It would therefore, appear that this second version is an improvement and is belated by 8 days. It will, therefore, not be safe to readily rely upon the second version. Hence it is a matter of further enquiry as to whether the second version is true and benefit in this case would go to the applicant. According to the first version, no prior instigation or concern is shown on the part of the applicant who was assigned the role of abusing and giving blows to Ghulam Hyder along after accused Sajjad Jan and Wali Muhammad Jan had already caused injuries to Ajmal and Ghulam Hyder Jan and had fallen them on the ground. Thus, prima facie, the applicant cannot be vicariously held liable for what the two accused had already done, apart from the fact that even such subsequent conduct on the part of the applicant was unnatural.

Aftab Ahmad Akhund who appeared for the complainant relied upon P L D 1983 S C 82 and 1981 S C M R 1139 and submitted that mala fide of intended arrest was condition precedent to the grant of bail before arrest. Hence the applicant should first be arrested by the police and then he should apply to the Court for bail afresh. I don't agree with Mr. Aftab. These rulings would not apply to the present case because by now the police has already challaned the applicant alongwith two other co‑accused and investigation stage is over. On the point of determination of vicarious liability etc. a number of rulings have been cited from both the sides, the consensus, however, is that the Courts can take into consideration the question of vicarious liability even at the time of bail.

In these circumstances, I am of the view that interim bail before arrest granted by I/C Sessions Judge Mr. Imdad Ali Memon, merits to be confirmed. I, therefore, confirm the interim bail before arrest already granted to the applicant. The application for cancellation of bail accordingly stands dismissed."

14. Respondent Pir Muhammad Saeed before ties Court swore an affidavit in which he stated that he sought bail before arrest as out of mala fide of complainant, who was making false and frivolous allegations against him to the higher authorities by way of telegrams and Press statements and his apprehension came out to be true when on 13th June, 1984 a direct complaint with different version assigning major role to the commission of crime was filed.

15. No counter‑affidavit was filed by the petitioner. The admitted facts in the F.I.R. as well as in direct complaint are that co‑accused Sajjad Ahmad Jan, the son of the respondent and Wali Muhammad Jan, his nephew caused knife (dagger) injuries to deceased Ajmal Jan and injured Ghulam Haider Jan and both the accused are in jail who caused injuries to deceased and injured.

16. In criminal Bail Application No. 686/1983 reported in 1984 P. Cr. L J 2400 the Honourable Chief Justice of this Court observed as under:‑

"The learned Additional Advocate‑General has however, invited my attention to the judgment of the Supreme Court in the case of Murad Khan P L D 1983 S C 82. The Supreme Court has stated that pre‑arrest bail could be granted if it appears that arrest was for ulterior motive to humiliate, and harass the accused, or to cause irreparable injury to reputation or liberty. The very fact that the accused is likely to be arrested in a case of such nature would mean harassment, and by his arrest the accused would not only lose his liberty but even his service. In my view the conditions prescribed in the Supreme Court judgment are amply satisfied in the present case.

Interim bail granted to the accused on 18th August, 1983 is confirmed. "

17. In case of Hidayatullah v. Abdul Hameed and others reported in 1984 S C M R 119, the pre‑arrest bail was granted by the Supreme Court on merits and held that case require further enquiry. It is now to be seen whether the learned Sessions Judge was justified in granting A pre‑arrest bail to the respondent Pir Saeed Jan. The allegation in the F.I.R. against the respondent is that he instigated co‑accused and caused kicks and fists blows to injured Ghulam Haider Jan but no such injury except sharp‑edged weapons was found on the person of Ghulam Haider Jan. The role assigned to respondent in direct complaint is different but admittedly he was said to be empty‑handed. The investigation is complete and the case has been sent up for trial.

18. Had he not been granted bail by the court the Police must have arrested him and even at this stage complainant wants to see the respondent in jail. In the circumstances stated above, I am of the view that there was mala fide on the part of complainant and conditions for grant of pre‑arrest bail have been fulfilled. The learned Sessions Judge has properly exercised the discretion in granting anticipatory bail to Pir Saeed Jan and his order calls for no interference.

19. The counsel appearing for the State had not objected to the grant of pre‑arrest bail before the Sessions Judge and in this Court, the learned Assistant Advocate‑General has not supported the cancellation application. In view, of the circumstances and reasons stated above I dismiss the application.

20. The grievance of Mr. Aftab Akhund is that Sessions Judge in his order hay not considered his contentions about the tampering of the evidence. It is a matter of record that petitioner filed affidavits of all the witnesses that respondent is trying to tamper with the evidence. The order of the Sessions Judge on this point is silent. In all fairness the learned Sessions Judge should have considered this aspect of the case. It is open for the complainant to take up this point before the trial Court at any time if so advised. I have tried to refrain from considering the merits of the case in detail. However any observations made in this order should not prejudice the case. The trial Court to decide case on merits and according to law.

S. G. D. Order accordingly.

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