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Criminal Bail Application No. 403 of 1986, decided on 25th March,1986.

‑‑‑S. 498‑‑Penal Code (XLV of 1860), S.148/302/149‑‑Pre‑arrest bail grant of‑‑Second application for bail before arrest‑‑First application rejected after considering all points raised therein‑‑Accused not surrendering before Police‑‑Specific part attributed to accused‑‑Medical evidence supporting prosecution‑‑Plea of alibi considered in previous, order‑‑Discrepancy between time of occurrence and duration of injuries given by doctor to be considered when doctor examined‑‑No male fide shown‑‑Case challaned‑‑Accused still absconding‑‑Case for pre‑arrest bail, held, was not made out and there were no fresh grounds to call for review of earlier order.

1985 S C M R 1949 distinguished.

1986 P Cr. L J 50 and 1986 P Cr. L J 87 ref.

Raja Qureshi for Applicant.

Abdul Ghafoor Mangi, Asstt. A.‑G. for the State.

This is an application for pre‑arrest bail in a case pending under sections 302, 148 and 149, P.P.C.

The relevant facts of the prosecution case are that on 5‑11‑1985 at about 6.30 a.m. complainant Lutuf Ali alongwith his brother Ali Nawaz were going to their house, when they reached at Bank Square Chowk Larkana Town they met Hassan Ali and Abdul Fateh. All the four started going and when they reached near house of Ellahi Bux there appeared 5 persons from the street. They were identified to be applicant Akbar, Deedar, Ali Nawaz, Arzoo and Ghulam Shabbir. It is alleged that Ali Akbar was armed with rifle, and Ali Nawaz Bozdar had a gun and they both fired at deceased Ali Nawaz who died. Lutuf Ali went and lodged the report at 7.45 at Police Station Larkana.

Applicant, co‑accused Deedar and Arzoo were granted interim bail before arrest by an order, dated 17‑12‑1985. On 24‑12‑1985 later on the bail of Deedar and Arzoo was confirmed and bail application of present applicant was dismissed. He has again some for bail before arrest.

It has been argued by Mr. Raja Qureshi, appearing for the applicant that some important points were not pointed out at the time of hearing previous bail application. He states that there is conflict between the time of incident and post‑mortem report. He has argued that according to prosecution incident took place on 6.30 a.m. whereas Doctor has given age of injuries to be 8.00 to 12.00 hours. His next contention is that licensed gun of deceased was recovered on 15‑11‑1985 from co‑accused Ali Nawaz, therefore, the applicant is not required for any further investigation. He has submitted that witnesses are related and there exists previous enmity between the parties. He has referred to the case reported in 1985 S C M R 1949.

This is second time that applicant has come for bail before arrest. His earlier application was rejected and detail order was passed in which all the points were touched and even the case‑law referred by the learned counsel for the applicant as well as Assistant Advocate General, on the point of bail before arrest was considered. "The facts of the case reported in 1985 S C M R 1949 are different. In that case applicants did not cause any injury to deceased nor overt act was attributed they were also empty‑handed, therefore, relying on the above‑reported case co‑accused Deedar and Arzoo were granted bail before arrest. The specific part is attributed to the applicant supported by medical evidence. His plea of alibi was also considered in previous order. So far discrepancy between the time given by the Doctor in the post‑mortem notes is concerned I may state that it could only be considered when Doctor is examined. There is always margin of error in such cases. The post‑mortem was started at 10 a.m. There are different considerations for the grant of bail before arrest and bail after arrest. The mala fide has not been shown. On this I had already referred to the case of Supreme Court. In case reported in 1986 P Cr. L J 50 and 1986 P Cr. L J 87 are relevant has been pointed out that case has been challaned and applicant is still absconding. His earlier application though rejected he did not surrender. The case for bail before arrest is not made out and there are no fresh grounds to review my earlier order. The application is dismissed.

S.A. Application dismissed.

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