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Criminal Bail Application No. 466 of 1985, decided on 13th November, 1985.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 362/365--‑Bail before arrest‑ While considering pre‑arrest bail to accused it has to be seen if his involvement in case is motivated by mala fide considerations such as bringing about his humiliation or causing him undue harassment or doing irreparable damage to his reputation and liberty.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 362/365‑‑Bail before arrest‑ Abduction‑‑Enmity existing between parties‑‑Evidence sought to link accused with abduction case, if viewed in background of enmity between parties, appearing to be motivated by some ulterior consideration‑ Accused related to complainant and well known to eye‑witnesses but his name not mentioned in first information report despite fact that faces of all culprits were open‑‑Statement of eye‑witness that accused was one of culprits who caused abduction belied by another witness who was also present at time of occurrence‑‑Statement of another witness implicating accused not credible for reason that his name was not mentioned in first information report as being one of eye‑witnesses‑‑Abductee not recovered from possession of accused‑‑Criteria laid down by superior Courts for granting pre‑arrest bail satisfied in case of accused‑‑Pre‑arrest bail allowed in circumstances.

Muhammad Safdar v. The State 1983 S C M R 645; Murad Khan v. Fazal‑e‑Subhan and another P L D 1983 S C 82 and Zial‑ul‑Hassan v. The State P L D 1984 S C 192 rel.

Kazi Azizullah for Applicant.

Syed Sarfraz Ahmed Asstt. A.‑G. for the State.

This is an application moved on behalf of the applicant Shamsuddin for pre‑arrest bail.

As disclosed in the F.I.R., the prosecution case is that at the time of occurrence which took place on 22‑10‑1985 at 7 p.m. the complainant Hap Muhammad Anwar was in his house when he heard fire shots. He took his licensed gun and went out. Ghulam Shabir, his nephew who was coming crying told the complainant that some 14‑15 unknown persons armed with rifles and guns were abducting away his brother Ghulam Qadir. The complainant further learnt from him that deceased Muhammad Bux (complainant's brother) who tried to rescue his son Ghulam Qadir was hit by a rifle shot fired at him by one of the assailants. On receipt of this information the complainant resorted to firing from his gun in the air. He also saw Ghulam Qadir being forcibly taken away by a group of 14‑15 dacoits, all having only fire arms. Seeing this the complainant took position and opened fire aiming at the dacoits who too fired in reply. He and other villagers who had collected on commotion however did not dare to go near the decoits who ultimately took away Ghulam Qadir towards the other side of the protection bund. It is alleged that besides Ghulam Qadir and deceased Muhammad Bux, the complainant's sister's husband Mashooq All and Ghulam Qadir were sitting in the Otak at the time of Ghulam Qadir's abduction from there. Meanwhile Muhammad Bux had turned unconscious on account of the injuries he had received. The complainant with help of other witnesses took him to the Police Station where he lodged F.I.R. Muhammad Bux died of the injuries he had sustained. It was specifically mentioned by the complainant in the F.I.R. that he suspected the dacoits to die belonging to the gang of decoit Allah Rakhio Khokhar. It was also stated by him that faces of the decoits were open and he would be able to identify them.

I have heard the arguments of the learned counsel for the parties and have also perused the relevant documents including the order of the trial Court.

The learned counsel for the applicant/accused has urged the following grounds in support of the prayer for bail:

(1) That the name of the applicant does not transpire in the F. I. R., even though he is known to the complainant, who is admittedly related to him.

(2) That it is admitted that the complainant's party have been on inimical terms with the applicant since prior to the occurrence.

(3) That implicating of the applicant bye Ghulam Qadir and Muhammad Sadiq in their 164, Cr.P.C. statements recorded after 14 days from the incident is by itself indicative of the ulterior motive and mala fide intention of the complainant party for falsely involving him in the case.

(4) That Mashooq Ali who is admittedly eye‑witness to the occurrence and is complainant's brother‑in‑law has been specific in his affidavit sworn by him before the Sessions Court that the applicant was not amongst the dacoits who abducted Ghulam Qadir.

(5) That the abductee Ghulam Qadir was not recovered from the applicant's possession.

(6) That even Ghulam Shabir, brother of the abductee who was admittedly present at the time of occurrence and had seen the culprits is not alleged to have implicated the applicant.

(7) That the applicant is a respectable Zamindar of the locality and if bail is not granted to him, his arrest would amount to unnecessary harassment to him.

At this stage my reference was invited to several authorities to show that the considerations for pre‑arrest bail are entitrely different from those applicable in the case in which the accused seeking bail is in custody.

The first case in this connection is of Muhammad Safdar v. The State 1983 S C M R 645 wherein it was held:

"The submissions made by the learned counsel for the petitioners overlook the fact that bail before arrest is not the rule in cognizable offences and is to be allowed only when it can be shown that the petitioner apprehends arrest due to some ulterior motives on the part of the authorities or other influential persons, or there are some peculiar features of the case which would justify the exercise of this discretionary power by the High Court or the Sessions Court."

Another case on the same point is of Murad Khan v. Fazal‑e- Subhan and another P L D 1983 S C 82 in which after reviewing a number of authorities, the criteria that were laid down for pre‑arrest bail were:‑-

"Arrest of accused being for ulterior motives such as his humiliation and unjustified harassment; prosecution of accused motivated by motive so as to cause irreparable injury to his reputation and liberty; and motivation of Police on political considerations."

In the case of Zial‑ul‑Hassan v. The State P L D 1984 S C 192 it was held:

"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 fides which must be specifically stated. It is in this context also that the other condition of irreparable loss is to be viewed."

In view of the law laid down in the above authorities it has to be seen if the applicant's involvement in the case is motivated by mala fide considerations such as bringing about his humiliation or causing him undue harassment or doing irreparable damage to his reputation liberty. Of course the only source of providing such information is the material laid before the Court. In this connection reference may first be made to the 164, Cr.P.C. statement of the abductee Ghulam Qadir. His statement has left me in doubt that there has been long standing enmity between the complainant's party and the applicant's father Khuda Bux over division of land. In the same statement he has also depicted the applicant as bad character having association with dacoits. Thus his statement is a clear indication that the relations between the parties are far from satisfactory. This finds confirmation even from the affidavit of Mashooq Ali who is closely related to the complainant, being his brother‑in‑law.

If the evidence seeking to link the applicant with the abduction of Ghulam Qadir is viewed in the above background of enmity between the parties, it seems to be motivated by some ulterior consideration. Even though the applicant is related to the complainant and hence well‑known not only to him but also to Ghulam Qadir's brother Ghulam B Shabir, one of the eye‑witnesses, his name does not appear in the F. I. R. despite the fact tote faces of all the decoits were open' and the complainant's claim that he would be able to identify them. It was after 14 days from the incident when Ghulam Qadir and his brother Muhammad Sadiq were produced for their statements under section 164, Cr.P.C. Obviously they for the first time mentioned the name of the applicant to be one of the decoits who had abducted Ghulam Qadir and killed his father deceased Muhammad Bux. However they stand belied by Mashooq Ali who was also admittedly present at the time of occurrence. He has categorically denied that the applicant was amongst dacoits. Again the statement of Muhammad Sadiq implicating the applicant seems incredible for additional reason that his name finds no mention in the F.I.R. as being one of the eye‑witnesses. Furthermore the abductee Ghualm Qadir was not recovered from the applicant's possession.

It appears from the above discussion that the criteria laid down in the aforementioned Supreme Court cases for granting pre‑arrest bail are satisfied in the case of this applicant who was accordingly allowed D the concession of bail by short order, dated 13‑11‑1985 in the sum of Rs.30,000 to the satisfaction of Additional Registrar of this Circuit Bench.

M.Y.H. Bail allowed.

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