DR. SANJIDA JAFRI Versus TALIB HUSSAIN
ORDER
1. This is an application under section 497(5), Cr.P.C. for cancellation of bail of the respondent No Sessions Judge, Khairpur, vide order, dated 8-11-1987.
2. The brief facts giving rise to the present application are that:-
3. On 8-3-1987, Dr. Sanjida wife of Yousuf Ahmed Jafery, lodged a report at Police Station Kotdiji, inter alia, alleging therein that her husband Yousaf Ahmed Jafferi is an Advocate and practises in High Court and Supreme Court. She practices medicine and has a private clinic in her house. That she had to take medicine from Khairpur, and therefore, she alongwith her husband left for Khairpur at 7-00 a.m. Syed Ali Kausar son of Naimul Hassan, Advocate; junior of her husband, and Niaz Ali son of Allah Rakhio were also going with them to Khairpur. Her husband was driving the car. She, Ali Kauser and Niaz Ali were sitting on the rear seat of the car. At about 7-20 a.m. While they were passing near Mehmoodshah (village) one truck was going in front of their car, therefore, her husband slowed down the car. In the meantime one white car came from behind in fast speed and tried to overtake them, its windows were open, and they saw Talib with Kalashankov, his son Abbas with rifle, his another son Tahir with gun sitting in the car, and his third son Zahid was driving the car. It was further alleged that while overtaking the complainant party Talib fired a burst of Kalashankov at her husband which hit him. Abbas and Tahir also fired at him. The car went down in wheat field. Accused then went away. Then they saw that Yousuf Ahmed Jaffery had died. The windows of the car were broken and there were firing marks on the car. The motive alleged in the F.I.R. was that they had a dispute with Talib over Petrol Pump and case was pending in the Court. Before this incident Talib and others had also fired at her husband and case under section 307, P.P.C. was pending in the Court. Due to this enmity, the said accused had killed her husband Yousuf Ahmed Jaffery."
4. After recording the F.I.R., police arrested the respondent No.1, while the co-accused moved an application for bail before arrest which was ultimately dismissed by this Court on 9-4-1987.
5. The respondent moved an application for bail after arrest but the same was kept pending as the learned trial Judge had gone on training, and therefore, he filed an application for bail before this Court which came up for hearing on 29-10-1987, and the same was not pressed as the application before the learned trial Judge was still pending. However, the learned Sessions Judge, Khairpur, was directed to hear the application personally and decide within two weeks.
6. That thereafter the respondent was granted bail by the-learned Sessions Judge, Khairpur, vide order dated 8-11-1987. The present application is directed against the above order.
7. It has been contended by Mr. Usman Ghani Rashid learned counsel appearing for the applicant /complainant that since the application of the co-accused for bail before arrest was rejected by this Court, the learned Sessions Judge has erred in granting bail to the respondent. That the learned Sessions Judge has erred in considering the merits of the case. That on merits it was not a case for bail, as specific part was assigned to the respondent in F.I.R., and the learned Sessions Judge had erred in granting bail to the respondent.
8. Mr. Mohammad Hayat Junejo learned counsel appearing for the private respondent has contended that considerations for grant of bail before arrest and for grant of bail after arrest are different. He has further contended that the respondent had examined defence witnesses before the Investigating Officer to show that he was not present at the Wardat at the time of incident. That two witnesses namely Ali Kosar, Advocate, junior of the deceased, and Niaz Ali Thebo, client of the deceased had not supported the prosecution in their 164, Cr.P.C. statements. That their evidence shows that the applicant/complainant was not present at the Wardat which is supported by the circumstances of the case. He has further contended that the prosecution story was most absurd inasmuch as when the front seat was lying vacant it was unnatural for the complainant who was a lady doctor and wife of the deceased to sit with the strangers on the rear seat. That the learned Sessions Judge has given cogent reasons for granting bail to the respondent, and the order does not suffer from any infirmity. In support of his contention he has relied-upon 1979 SCMR page 103, 1982 S C M R page 227, 1984 S C 17 R pages 429, 529, 1378 and 1559.
9. Mr. Abdul Ghafoor Mangi, learned A.A.-G. appearing for the State has contended that looking to the facts and circumstances of the case the bail was rightly granted to the respondent. However, his further contention was that the learned Sessions Judge ought not to have gone into deeper appreciation of the facts of the case, and therefore, some observations may be made in this connection.
10. I have considered the contentions of the learned counsel and have gone through the papers.
11. So far the first contention of Mr. Usman Ghani Rashid was concerned, the respondent had not applied for bail before arrest but it was co-accused who had applied for bail before arrest, and therefore, rejection of their application could not be considered as a bar to the consideration of bail application of the respondent. Moreover the considerations for bail before arrest, and for grant of bail after arrest are totally different. This question came up before their Lordships of the Supreme Court in the case of Muhammad Hussain v. The State 1982 S C M g page 227 and it was observed that:-
12. "We can, however, not lose sight of the fact that pre-arrest bail and bail after arrest are based on entirely different principles, and the rejection of an application for the former does not have any bearing on the latter."
13. So far the second contention of Mr. Usman Ghani Rashid that the learned Sessions Judge had erred in considering the merits of the case is concerned it is untenable, inasmuch as the learned Judge had to tenatatively assess the evidence for the purpose of considering the question of grant of bail to the respondent. In the case of Khalid Javed Gillani v. The State P L D 1978 SC page 256 it was observed by their Lordships of the Supreme Court that:-
14. "Now as bail has to be allowed or rejected on the basis of this material, it follows that the Court has to take a tenative assessment of its evidentiary value in order to decide a bail application, more, so as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it."
15. From the above observation of their Lordships of the Supreme Court it is clear that while considering the question of bail evidence has to be assessed tentatively."
16. The F.I.R. shows that there were 3 eye-witnesses of the incident namely applicant /complainant, Mr. Ali Kosar, Advocate, and Niaz Ali Thebo: So far Mr. Ali Kosar, advocate and Niaz Ali Thebo were concerned both have not implicated the respondent in their 164, Cr.P.C. statements. They have further stated that the applicant/complainant was not there at the time of incident, and that she came to the Wardat later on. The prosecution has examined 2 more witnesses namely Nazeer Ali and Mst. Bhrai as eye-witnesses but their names do not appear in the F.I.R. which was lodged by the applicant herself. It is an admitted position that there was enmity between the parties. The contention of the learned counsel appearing for the respondent that in view of the fact that the front seat was lying vacant, it was unnatural that the complainant who was a respectable lady doctor and wife of an Advocate will sit with a client and a junior of her husband would also require further inquiry. The learned trial Judge has given cogent reasons for granting bail to the respondent and the order cannot be said to be preverse or arbitrary.
17. In the case of Falak Sher and another v. The State 1979 SCMR 103 it was observed by their Lordships of the Supreme Court that:-
18. "The High Court, it appears, did not upset the finding of the learned Sessions Judge that it was a case of further inquiry, but making appraisal of the merits in its own way, cancelled the bail without expressing any opinion on the subject. of further inquiry. This was illegal because in our view, a High Court would not be justified to interfere in discretionary orders of the Courts below where the said Courts feel from perusal of record and specifically hold that a case is such which needs further inquiry, and pass the relevant order on the ground and basis, unless the order impugned is perverse, arbitrary, fanciful or is not borne out from the record "
19. In the case of Mohammad Afzal v. Nazir Ahmad and others 1984 S. C M R 429 it was observed by their Lordships of the Supreme Court that:-
20. "The relevancy to the question of bail of the opinion of the investigating agency in regard to the complicity of an accused person will depend on the soundness of the material upon which it is based. If the investigation brings to light facts which may furnish prima facie a reasonable ground for believing that an accused though named in the F.I.R. is not guilty, the opinion of the Investigating Officer based on such facts will be relevant."
21. That the same view was taken in the case of Amir Ali and others v. The State 1984 S C M R 521.
22. From the factual as well as legal position it is clear that the learned Sessions Judge has given cogent reasons for granting bail to the respondent and the order does not suffer from any infirmity, and therefore, does not call for interference. The application is accordingly dismissed.
23. However, I will direct the learned trial Judge to hear and dispose of the case uninfluenced by the observations made by the learned Sessions Judge, while granting bail to the respondent, as well as the observations made by this Court.
24. The applicant will be entitled to move the trial Court for cancellation of bail of the respondent if any tangible evidence is brought on record during the trial.
25. S.A./S-190/K Application dismissed.