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Bail Application No. 540 of 1987, decided on 21st April, 1987.

‑‑‑ S. 497 ‑‑Bail before arrest‑‑Final medical report showing that one injury was grievous in nature while other was simple in nature‑ Accused not making any serious allegations of mala fide against police or complainant‑‑Case still under investigation and police yet to make recovery from accused‑‑Accused failing to make out a case for pre‑arrest bail‑‑Bail refused, order granting interim bail recalled.

Ziaul Hassan v. The State P L D 1984 SC 192 rel.

S. Saeed Hasan, for Applicants.

S. Sarfraz Ahmed, A.A.‑G. for the State.

The brief facts giving rise to the present application are that one Ali Hasan lodged a report at police station New Karachi, alleging that he deals in vegetable on Sindhi Hotel. That on the preceding night of the incident, Israr, Munna and Bashir had come at his house at 12‑00 mid‑night with Churry, out of them Bashir is in the habit of taking Intoxicants, hence he did not open the door. That on the day of incident he had gone to the house of his sister, and on return at 8‑00 p.m. he found that the above three persons were beating his brother Mohammad Shafi. On which he intervened to save his brother. On this Israr gave him a Danda 'iron Bar' blow on his head, accused Munna caught hold of him and gave Danda blow on his right hand. Thereafter they ran away. The complainant then went to the police station to lodge his report which was recorded in the station diary, and the complainant was referred for treatment and certificates. On receipt of medical certificate, the F.I.R. was incorporated in 194, Cr.P.C. book on 29‑3‑1987, and the offence was converted into one under section 325/34, P.P.C. The applicants moved application for bail before arrest which came up before the learned 1st Additional Sessions Judge, Karachi, who granted interim bail to the applicants vide his order, dated 17‑3‑1987. After hearing the learned counsel for the applicants and A.P.P. the interim order was recalled and the application was dismissed on 4‑ 4‑1987.

I have heard Mr. S. Saeed Hasan appearing for the applicants and Mr. S. Sarfraz Ahmed, A.A.‑G. for the State, and have also gone through the police papers.

The contention of Mr. S. Saeed Hasan is that the case is false and there is discrepancy in medical report and the F.I.R. lodged by the complainant, inasmuch as the F.I.R. does not show that complainant had received injury on the elbow as well‑ That the case is mala fide and the applicants are entitled to bail.

Mr. Sarfraz Ahmed, learned A.A.‑G appearing for the State has opposed the grant of bail to the applicants on the ground that no case for pre‑arrest bail has been made out inasmuch as no mala fides are alleged against the police, and even the applicants have failed to show any enmity with the complainant. He has further contended that grant of pre‑arrest bail will hamper the investigation.

I have considered the contention of the learned counsel. Initial medical certificate shows that the complainant Ali Hasan and sustained two injuries, out of which injury No. 1 was contusion 3" x 1/2" on elbow, swelling and tenderness was present, while injury No. 2 is lacerated wound 1" x 1/2" on occipital region. The final medical certificate issued on 28‑ 3‑ 1987 shows that the injury No. 1 was grievous in nature and No. 2 was simple in nature. The applicants have not made any serious allegations of mala fides against the police, as well as against the complainant, the case is still under investigation and the police has to make recoveries from the applicants. It has been held in Ziaul Hassan v. The State P L D SC 192:

"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. Most essential of them all being that the intended arrest would be tainted with mala fide 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 above discussion, I am of the considered view that the applicants have failed to make out case for grant of bail before arrest, consequently their application is rejected, and the order granting interim bail before arrest to them on 13‑4‑1987 is hereby recalled.

M.Y.H./H‑24/K Bail refused.

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