RASOOL BUX Versus SYED SAFDAR ALI SHAH

ORDER

1. This is an application a/s 497, subsection (5), Cr.P.C. for cancellation of bail granted to the private respondents by the learned Sessions Judge, Karachi East vide order dated 19‑7‑1987.

2. The brief facts of the case are that on 28‑4‑1987 Mohammad Usman SHO P.S. Gadap received information from Mohammad Mehmood, Haji Yaqoob and Ghulam Hussain that while they were sitting in the hotel of Haji Ghafoor at about 6‑30 p.m., Mr. Ghulam Hussain owner of truck No.827‑172 informed them that he had seen a dead body in a gunny bag lying in the Malir River towards east opposite Garden of Mazhar Rafeeque. SHO Mohammad Usman alongwith his subordinate staff and the above witnesses went to the above place and found dead body lying there. He examined the dead body and prepared inquest report. According to him, the dead body had shirt of Boski and white Tetron shalwar. He sent the dead body to the Civil Hospital for post‑mortem and on receipt of post‑mortem he lodged the report on 29‑4‑1987 on behalf of the State.

3. That again on 1‑5‑1987 one Rasool Bux father of deceased Ali Hussain lodged a report at Police Station Mehmoodabad, inter alia, alleging therein that Ali Hussain aged 22‑23 years is employed as a clerk in the Commissioner Office in Ushr, 2akat Department. He was on three months leave. On 27‑4‑1987 at about 6‑00 p.m. Nazir Hussain Shah who is a friend of his son and is maternal‑nephew of Safdar Shah (who is their Peer/Murshed) came to his house and took his son to their house at Shah rah‑e‑Qaideen. His son has not returned so far. He did not know where he had gone. Prior to this incident his son had gone with Nazir Hussain Shah many times. He had searched his son but all in vain and therefore he had come for report. This report was recorded in Station diary.

4. During the investigation the police wanted to arrest the respondents and therefore they moved application for bail before arrest before the learned Sessions Judge and the same was accordingly granted on 19‑7‑1987, after hearing the learned D.P.P. and the Advocate appearing for the respondents. The present application is for the cancellation of bail granted to the respondents by the learned Sessions Judge on 19‑7‑1987.

5. I have heard Mr. Umer Farooq Khan learned counsel appearing for the applicant /complainant, Mr. A.Q. Halepota learned Advocate appearing for the private respondents and Mr. Abdul Ghafoor Mangi A. A.‑G. appearing for the State.

6. Mr. Umer Farooq Khan learned counsel has contended that the respondents had motive to kill the deceased. That there was evidence of last seen against respondent Nazir Hussain Shah that he took away the deceased on 27‑4‑1987. That the considerations for the grant of bail before arrest, and bail after arrest are different, and the learned Judge had erred in granting bail before arrest to the respondents. In support of his contention he has relied upon PLD 1983 SC 82. He has further contended that the police had also secured photographs of the deceased with Mst. Najma who is the wife of respondent Safdar Ali Shah, and that there was evidence that the deceased was suspected to be on illicit terms with Mst. Najma.

7. Mr. A.Q. Halepota learned Advocate for the private respondents has contended that the report lodged by the applicant who is father of the deceased does not disclose that there was any motive for respondent to kill his son Ali Hussain Shah. That the motive is false and afterthought. That the evidence of last seen is only against the respondent Nazir Hussain Shah but the report shows that the respondent was Murshed of the deceased and that the deceased had been going alongwith Nazir Hussain Shah ever previously. Moreover, the report shows that the deceased had left the house on 27‑4‑1987 and the dead body was found on 28‑4‑1987 and there is no evidence that he remained with Nazir Hussain Shah throughout till his death. He has further contended that there was no evidence whatsoever against the respondents and therefore the fact that police wanted to arrest them itself showed mala fides. He has further contended that the consideration for grant of bail and for cancellation of bail are different. The State has not moved for cancellation of bail and therefore the present application is mala fide and is not. maintainable. In support of his contentions he has relied upon Nazar Mohammad v. The State 1977 PCr.LJ 277, Mohammad Akber Tarik v. The State 1977 P Cr. L J 540 and Jamaluddin v. The State 1985 S C M R 1949.

8. Mr. Abdul Ghafoor Mangi, A.A.‑G. has contended that there was no direct evidence to connect the respondents with the alleged murder and the entire case is based on circumstantial evidence. The motive was not mentioned in the report filed by the applicant who is father of the deceased. That since the evidence available against the respondents is that respondent Nazir Hussain Shah was last seen with the deceased, and the photographs recovered by police showing the wife of respondent Safdar Ali Shah with deceased Ali Hussain, and the alleged suspicion of illicit connection, he will not support the cancellation of bail application filed by the applicant.

9. I have considered the contentions of the learned counsel and have gone through the authorities cited at the Bar.

10. It is an admitted position that there is no direct evidence to connect the respondents Nos. 1 and 2 with the murder of deceased Ali Hussain. In the first F.I.R. lodged by Mohammad Usman S.H.O. the names of the assailants are not mentioned. In the report filed by applicant Rasool Bux at P.S. Mehmoodabad, it is mentioned that respondents No.2 Syed Nazir Hussain Shah had taken away Ali Hussain on 27‑4‑1987. It further shows that the deceased Ali Hussain and the applicant were Mureeds of respondents Nos. 1 and 2, and that Ali Hussain had been going out with respondent No.2. No motive is mentioned nor any suspicion is alleged with regard to illicit connections. In the case of Murad Khan v Fazal‑e‑Subhan and another P L D 1983 SC 82 relied upon by the learned counsel for the applicant it was observed that:‑--- "a person applying for pre‑arrest bail must show that the apprehended arrest was for ulterior motive such as humiliation and unjustified harassment, prosecution motivated by motive so as to cause irreparable injury to reputation and liberty, motivation of police on political consideration."

11. The learned counsel for the respondents has not filed certified, copy of the application and affidavits filed by the respondents Nos.l1 and 2 for bail before arrest, but however the order dated 19‑7‑1987 passed by the learned Sessions Judge Karachi (East) shows "that the applicants have also alleged mala fides against the police. The order further shows that the applicants were being dragged at two police stations one at Gadap and other at Mehmoodabad." Even the learned counsel for the applicant has not contended before me that the mala fides were not alleged in the application for bail before arrest filed by the respondents Nos. i and 2 before the learned Sessions Judge. In the case of Jamaluddin v. The State 1983 SCNIR 1949 it was observed by their Lordships of the Supreme Court that; "grant or refusal of bail depended on facts of each case and no hard and fast rule could be laid down in that regard."

12. It was further observed that; "pre‑arrest bail grant‑‑consideration‑‑arrest for ulterior motives such as humiliation and unjustified harassment held a valid consideration for grant of pre‑arrest bail."

13. In view of the above legal position regarding grant of pre‑arrest bail and the observation of the learned Sessions Judge in his order with regard to mala fides I am of the considered view that pre‑condition for grant of pre‑arrest bail was satisfied by the respondents Nos. 1 and 2.

14. As far as the merits of the case were concerned there was no direct evidence against the respondents Nos. 1 and 2. The only allegation against the respondent Nazeer Hussain Shah was that the deceased had gone with him on 27‑4‑1987 while the dead body was recovered on 28‑4‑1987, and there was no evidence that the deceased remained with the respondents throughout this period till he was murdered. That as far as motive is concerned if there was any suspicion regarding illicit intimacy between Mst. Najma and the deceased, then in such a situation the applicant who is father of the deceased would not have allowed him to accompany respondent Nazeer Hussain Shah. Even this motive was not mentioned in the report filed by applicant after five days. In the case of Mohammad Akbar Tarik v. The State 1977 P Cr. L J 540 it was observed by Mr. Fakhruddin G. Ibrahim, J. of this Court (as he then was) that: "prosecution case against the petitioner resting entirely on last seen evidence, evidence of motive and evidence of procuring crime weapons, last seen evidence, however not associating accused with deceased shortly before his death. Deceased also having several enemies, the bail was allowed."

15. It was further contended by Mr. A . Q. Halepota that the State has not moved for cancellation of bail and the present application was mala fide and not maintainable in law. In this connection he has relied upon a case of this Court Nazar Mohammad v . The State and others 1977 P Cr. L J 277 in which it was held by his Lordship Mr. Zafar Hussain Mirza, J. (as he then was) that:

16. "The provision regarding cancellation of bail cannot be made available to private parties to satisfy their grudges against each other or to use as a means of wreaking their vengeance. Of course in cases where there is reliable evidence that the accused was misusing the liberty to divert the course of justice the Court would be competent to deprive him of that privilege."

17. In view of the above discussion and the legal position I am of the considered view that the respondents Nos.1 and 2 were rightly granted bail before arrest by the learned Sessions Judge, and the order in this respect does not call for interference. The application is therefore, hereby dismissed.

18. Whatever is said or observed in the above order is tentative in nature and the learned trial Judge will proceed with the case uninfluenced by the observations made in the above order.

19. However, if during the trial any tangible evidence comes on record against the respondents Nos.1 and 2 the applicant will be at liberty to move the learned trial Judge for cancellation of their bail.

20. S.A./R‑32/K ??????????????????????????????????????????????????????????????????????????? Cancellation refused.