ABBAS AND 2 OTHERS Versus THE STATE

ORDER

1. The brief facts of the prosecution case are that 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 Yousuf Ahmed Jafery is an Advocate and practices 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 Hasan, 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, Kausar 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 Klashnikov, 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 Klanshnikov 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 Jafery 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 a 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 Jafery.

2. After recording F.I.R. police arrested accused Talib while the present applicants moved an application for bail before arrest before this Court being Bail Application No. 322 of 1987, which came up before my learned brother Abdul Qadeer Choudhry, J. who was pleased to grant protective bail to the applicants upto 31‑3‑1987, to enable them to move Sessions Judge. The applicants moved an application before the learned Sessions Judge, Khairpur, which ultimately came up before the learned II Additional Sessions Judge, Khairpur, who by his order, dated 26th March, 1987, declined to grant bail to the applicant, hence this application.

3. I have heard Mr. Azizullah K. Sheikh, learned Advocate for the applicants and Mr. S. Sarfraz Ahmed, learned. A A.‑G. for the State, and have also gone through the police papers.

4. The contention of Mr. Azizullah K. Sheikh is that P.Ws. Niaz Ali and Ali Kausar have filed affidavits exonerating the applicants. The Investigating Officer has examined Gagoo and Hussain Bux driver and cleaner of a Suzuki, and their evidence shows that the complainant was not present at the Vardat at the time of incident but she went to the place of Vardat in their Suzuki after she came to know about the incident. That there was deep routed enmity between the parties and the applicants have been implicated falsely. He has also produced photostat copy of F.I.R. lodged by deceased Yousuf Ahmed under sections 307, 147, 148 and 149, P.P.C. against the applicants, order granting bail to accused Talib Hussain and the present applicants. He has further produced a medical certificate showing that applicant Tahir Hussain was admitted in Khalid Clinic and Maternity Home at Multan from 6‑3‑1987 to 10‑3‑1987.

5. Mr. S. Sarfraz Ahmed, learned A.A.‑G. has contended that incident has taken place during broad daylight, and the complainant herself is an eye‑witness in the case. The F.I.R. was lodged promptly and the names of the Applicants appeared in F.I.R., and specific role has been assigned to them. So far witness Gagoo and Hussain Bux are concerned, they are brothers inter se and they are not showed as witnesses in the F.I.R. That the deceased had enmity with these two witnesses which is clear from the fact that the F. I. R. lodged by deceased on 14‑11‑1984 shows that driver Ghulam Nabi son of Gagoo was also an accused and, therefore, they have been set up by the applicants. He has further contended that in view of the fact that the applicants, had a motive, and the complainant is an eye‑witness in the case, the applicants are not entitled to concession of pre‑arrest bail. In support of his contentions, he has relied upon P L D 1983 SC 82 and P L D 1984 SC 192.

6. I have considered the contentions of the learned counsel appearing for the parties and have also gone through the police papers. In this case, the F.I.R. was lodged promptly, the names of the applicants have been mentioned in the F.I.R. and specific role has been assigned to each one of them. The post‑mortem report shows that deceased had fire‑arm injuries on his body. The motive has been mentioned in the F.I.R. and even it is a case of Mr. Azizullah K . Sheikh that there is a deep routed enmity between the parties. The F.I.R. lodged by deceased Yousuf Ahmed under sections 307, 147, 148, 149, P.P.C. shows that Ghulam Nabi son of Gagoo was named as an accused in the case.

7. In spite of the fact that P.Ws. Niaz Ali and Ali Kausar have filed affidavits, the complainant is also an eye‑witness in the case who has named the applicants in the F.I.R. The medical certificate produced by applicant Tahir Hussain is not issued by any Specialist, and the illness shown in the certificate was not such, which could necessitate his admission as Indoor patient. There is no serious allegation of mala fides on the part of the investigating police in the bail application, nor such contention was raised before me by the learned counsel for the applicants that the police was going to, arrest them due to ulterior motives. In Murad Khan v. Fazal‑e‑Subhan and another P L D 1983 SC 82 it was held:

8. "Criminal Procedure Code section 498‑A pre‑arrest bail.‑?Conditions for grant of pre‑arrest bail, arrest being for ulterior motives such as humiliation and unjustified harrassment, prosecution motivated by motive so as to cause irrepairable injury to reputation and liberty motivation of police on political consideration ‑ Counsel unable to satisfy Court with regard to condition of mala fides of intended arrest, case, held, not fit for grant of anticipatory bail."

9. In Ziaul Hasan v. The State P L D 1984 SC 192, it was held that:--‑

10. "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, the most essential of them all being that intended arrest would be tainted with mala fides which must be specifically stated."

11. In view of the above discussion I am of the considered view that no case for grant of anticipatory bail before arrest is made out and therefore, the application is hereby dismissed.

12. S.G.D/A‑205/K ?????????? ? ????????????????????????????????????????????????????????????????????????????????? Bail refused.