MEERAN BUX Versus STATE
This matter arises from a petition for leave to appeal directed against an order of the Sind High Court which cancelled the pre-arrest bail previously granted to the petitioner by the Sessions Judge. The petitioner is facing trial under sections 302 and 304 read with section 34 of the Pakistan Penal Code. The High Court had set aside the pre-arrest bail on the ground that the pre-requisite showing arrest was due to ulterior motives, as established by precedent, was not satisfactorily proved. The core legal question concerns whether the allegations regarding ulterior motives in the bail application were duly considered on merits. The Supreme Court held that the petitioner had indeed pleaded ulterior motives and police fabrication, and considering the concession by the State counsel, there was merit in granting leave to appeal. The key principle laid down is that where an accused specifically pleads ulterior motives and false fabrication by the police in a pre-arrest bail application, the matter warrants consideration on its merits rather than summary dismissal.
- Whether pre-arrest bail can be cancelled when the accused has pleaded ulterior motives and police fabrication in the bail application?
- Is a first informant a necessary party in a petition for leave to appeal against the cancellation of pre-arrest bail?
- Section 302, Pakistan Penal Code
- Section 304, Pakistan Penal Code
- Section 34, Pakistan Penal Code
ORDER
1. ABDUL KADIR SHAIKH, J.‑‑ This is a petition for leave to appeal from the order of a learned Judge of Sind High Court, dated 24‑8‑1986 cancelling pre‑arrest bail granted to petitioner by the‑ order of the Sessions Judge, Khairpur Mirs, dated 20‑8‑1985.
2. Petitioner alongwith three others is facing trial of a case under sections 302, 304/34, P.P.C. for having caused the murder of Badshah Dino and made murderous assault on Jan Khan on the bank of Sanhro minor near land of Haji Sadoro on 5‑6‑1985 at about 9‑30 p.m. The report of the incident was lodged by Fakir Mohammad Janwari with Khairpur town police station during the same night.
3. Whereas the three co‑accused were arrested soon after the investigation began, petitioner was some how not arrested, and he made an application for pre‑arrest bail on 12‑8‑1986. The Sessions Judge, Khairpur granted his request by the order, dated 20‑8‑1986 and he was released on pre‑arrest bail.
4. However, on a petition from Fakir Muhammad Janwari, the first informant, and in exercise of suo motu revisional jurisdiction, a Judge of Sind High Court set aside the order of the Sessions Judge and cancelled the pre-arrest bail granted to the petitioner mainly for the reason that the pre‑requisite for the grant of pre‑arrest bail as laid down by this Court in the case of "Murad Khan v. Fazil Subhan P L D 1983 S C 82" namely that it must be shown that arrest was due to ulterior motive, was not satisfactorily proved and therefore the petitioner's request could not be considered.
5. Mr. Abdul Mujeeb Pirzada learned counsel appearing in support of the petition for leave to appeal from the order of the High Court submits that the learned Judge in the High Court has failed to appreciate that the petitioner had indeed ‑ stated in the application for pre‑arrest bail itself, that his arrest was for ulterior motive so as to humiliate him as the complainant party had won over the police and the case was falsely fabricated against him.
6. Mr. S. Murtaza Hussain learned counsel appearing for the State also frankly admits that in view of the allegations made in the application for bail, petitioner's request for grant of pre‑arrest bail deserved to be considered on merits of the case.
7. In view of the position pointed out by the learned counsel for the State himself, there seems to be merit in the plea raised by the learned counsel for the petitioner. We therefore, grant leave to appeal.
8. We however find that the first informant, namely, Fakir Muhammad Janwari, who was a party in the proceedings of the case before the High Court and at whose instance the High Court cancelled petitioner's bail has not been joined as a party to this petition. 1 Since he is a necessary party, we direct that he shall be joined as respondent No.2. It is, therefore, necessary that memorandum of the petition be suitably amended, and we direct accordingly.
9. Amended memorandum of the petition shall be filed within two weeks.
10. Appeal will be heard on the present record during the end of April, 1987. It is, however, open to the parties to file additional documents, if any.
11. The petitioner shall continue to remain on pre‑arrest bail till the appeal is decided on the bail bond and security bond already furnished and executed by him.
12. M.I. /M‑443/S Leave granted.