Rehmatullah And Dawood Pathan vs The State

1. ORDER AGHA RAFIQ AHMED KHAN, J. - The above two bail before arrest applications are being disposed of by this common order as the same arise out of same crime.

2. Brief facts leading to these applications are that both the applicants/accused Rehmatullah and Dawood are involved in Crime No. 80 of 2007 under Sections 302, 324, 147, 148, 149, 114, 504, 337-H(ii), 337-A(i),' 337-F(i), P.P.C. Registered at Police Station Satellite Town on the basis of F.I.R. Lodged by complainant Noor Muhammad on 11.6.2007 at day of incident at about evening time, he alongwith his elder brother Abdul Ghaffar was standing in front of their houser where his brother asked contractor Malak Gul Hassan that in the CC work of the street low standard material is being used.

3. On this, contractor Gul Hassan became annoyed and abused Abdul Ghaffar. Mohalla people intervened and matter was settled. Thereafter complainant , alongwith his brother Abdul Ghaffar, nephews Muhammad Saleem, Munir, Nazeer, Rasheed s/.o Bhatti and brother-in- law Muhammad Ali were standing in front of their house when at about 1745 hours five motorcycles with two persons each alongwith a red coloured car in which Abdullah Pathan was sitting, came on the spot Abdullah Pathan, Akbar Pathan, Habib Pathan, Hukum Khan, Dawood Pathan, Gul Hussan, Ghaffar and Rehmatullah were armed with TT - pistols alongwith four unknown persons having Kalashnikovs, and Rifles in their hands. All the accused gave abuses and said that since they have exchanged hi|^words with Malak Gul Hussain, therefore, they will kill them. In the meantime Abdullah Pathan fired directly upon complainant who received injury on chest and fell down. Kakai Pathan fired directly upon Abdul Ghaffar who received injury on left hip and backside of vest and fell down. Habib Pathan fired directly with his TT pistol upon Muhammad Saleem which hit him on left side thigh and Ghaffar Pathan fired with pistol on Munir which hit him on left hand. Dawood Pathan fired with his TT pistol upon Rasheed who received injuries on his fingers. Accused Gul Hassan and Refimatullah armed with TT pistols and four unknown persons having K;Ks.- and Rifles attacked or complainant and Nazeer and caused injuries with pistol butts. On the cries of complainant party and on fire-arm report Mohalla people came and thereafter the accused persons left the Wardat in their vehicles after firing shots in the air. The complainant and PWs brought the injured to Civil Hospital, Mirpurkhas, where injured Muhammad Ali died. Complainant left PW Asghar with injured Munir and Rasheed at Civil Hospital, Mirpurkhas and then sent other injured persons to Hyderabad for treatment and thereafter brought the formalities to his house. He then went to Police Station and lodged the F.I.R.* which was registered on 11.6.2007 at about 1215 in the night.

4. After usual investigations case was challaned in the Court of Sessions Judge, Mirpurkhas, showing the present applicants/accused as absconders. After challan of the case the accused persons moved bail before arrest application which was rejected by learned llnd Additional Sessions Judge, Mirpurkhas on 3.8.2007. They then appeared in this Court and interim bail before arrest was granted to them on 24.9.2007.

5. Mr. Jawaid Choudhry, Advocate for accused Dawood Pathan has argued that there is delay of seven hours in lodging the F.I.R. Without any explanation and further there is contradictions as according to post-mortem, police had brought the injured at Hospital but complainant in his F.I.R.

6. Has said that he brought the injured persons. Allegations against accused Dawood is that he had caused fire-arm injuries to Rasheed on his fingers which is not vital been declared as simple.

7. According to him the accused has been falsely involved due to enmity. He has relied on the cases

(i) Khadim Hussain v. The State (1981 SCMR 1115),. (li) Attaullah v. The State (1999 SCM R 1320) and (iii)

8. Rais Wazir Ahmad v. The State (2004 SCM R 1167).

9. Syed Qaseem Ahmed, Advocate for accused Rehmatutlah has adopted the same arguments but has added that the allegations against his client are that he had given pistol butt injuries to the complainant and other PWs.

10. Mr. Anwar H. Ansari, learned State counsel has strongly opposed the bail before arrest applications.

11. I have carefully gone through the above case-law, which is not relevant in the facts, and circumstances of the present case. The authorities reported in 1981 SCMR 1115 and 1999 SCM R 1320 are regarding bail after arrest and case-law reported in 2004 "SCMR 1167 is totally irrelevant in the present matter. There is vast difference in grant of bail .Before arrest can be granted in extraordinary circumstances where prima facie it appears that there is mala fide on the part of prosecution or accused might have been involved falsely. In the present case the names of both the accused persons appear in the F.I.R, Their role has clearly been described by the complainant in the F.I.R. They. Had come armed with TT pistols alongwith other accused persons after the first incident in furtherance of their common object, therefore, Section 149, P.P.C. Is very much applicable in the case. As far as delay of few hours in lodging, the F I R. Is concerned it has been clearly explained in the F I R bv the- complainant. The accused persons after registration ot the case did not join the investigation and were shown as absconders in the challan.

12. Looking to the above facts and circumstances I am of the considered opinion that the applicants/accused are not entitled for concession of bail before arrest, hence the same is rejected. Interim bail already granted to them is recalled.