MANGIO Versus ALLAH RAKHIO
ORDER
1. This application under section 497(5), Cr.P.C. has been filed by the applicant, Mangio s/o Hussain, for cancellation of pre‑arrest bail granted to respondent No. 1 Allah Rakhio by the learned Additional Sessions Judge, Badin by his order dated 4‑9‑1986. I have heard learned counsel for the parties including the learned A . A . G.
2. Respondent No.1 Allah Rakhio s/o Gul Mohammad alongwith three other co‑accused namely Allan (the main accused on whose behalf no bail application has yet been moved), Bachayo and Ghulamoo are involved in a case under sections 302, 342, 323 and 504/35, P.P.C. According to the prosecution case, deceased Rajab Ali had died on account of pistol injuries caused by the main accused Allan. The application for pre‑arrest bail moved by the present applicant Allah Rakhio was granted, as observed earlier, by order dated 4‑9‑1986 of the learned Additional Sessions Judge, Badin and the entire reasoning of the learned Additional Sessions Judge is reproduced here:‑----
2. "There is an inordinate delay of 10 hours in lodging the FIR. The deceased Rajab Ali is fired by accused Allan from pistol and he died there and then instantaneously the accused is said to be armed with Lathi. He is attributed kicks and fists blows caused to complainant. No overt act is attributed to the accused in committing murder of deceased Rajab Ali. It is yet to be determined whether the accused is vicariously liable for the murder of deceased Rajab Ali and as such the case of accused is of further enquiry.
3. In view of the above reasons and circumstances I find that this is a fit case for bail, I, therefore, confirm the interim pre‑arrest bail already granted to the accused on the same terms and conditions."
3. It appears from the order dated 4‑9‑1986 of the learned Additional Sessions Judge, Badin that principles laid down by the Supreme Court for grant of pre‑arrest bail were not kept in mind by the learned Additional Sessions Judge. In this context reference may be made to the judgments of the Supreme Court in the case of Murad Khan v. Fazal‑e‑Subhan and another (PLD 1983 SC 82) and Ziaul Hassan v. The State (PLD 1984 SC 192). Last two paragraphs of the judgment of the Supreme Court reported in PLD 1984 S.C. 192 may be reproduced here:‑--
4. "In this case not only that the learned trial Judge was unaware of this aspect of the case but also the order shows lack of awareness of the basic law about the pre‑arrest bail as distinguished from the bail after arrest. 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 the intended arrest would be tained with mala fides which must be specifically stated. It is in this context also that the other condition of irreparable loss is to be viewed. Learned counsel appearing before us did not mention any fact to suggest that the arrest in this case would be mala fide. The High Court indeed was fully justified to interfere with the illegal order brought before it for scrutiny.
5. A copy of this judgment shall be sent to the learned trial Judge who passed the order impugned before the High Court so that he should further study the law on question of pre‑arrest bail."
6. From the impugned order dated 4‑9‑1986 it follows that the learned Additional Sessions Judge, Badin did not consider it necessary to decide the application for pre‑arrest bail moved by respondent No.1 in the light of the decisions of the Supreme Court laying down the conditions which must be fulfilled before pre‑arrest bail is granted. As observed by the Supreme Court in PLD 1984 SC 192, the learned Additional Sessions Judge could not grant pre‑arrest bail to respondent No.1 "unless all the conditions laid down by the superior Courts from time to time were satisfied, the most essential of them all being that the intended arrest would be tained with mala fides."
7. Mr. Aftab Akhund, learned counsel for the applicant, has argued that on the basis of the prosecution version and the material available at this stage with the prosecution it cannot be said that the ? arrest of the applicant would have been mala fide and, as observed by the Supreme Court in P L D 1984 SC 192, the question of irreparable loss in case the respondent No.1 was to be arrested should be viewed in the light of this principle of mala fides.
8. In the instant case there are two eye‑witnesses, who are also injured, of the entire incident. There is corroboration by Muhammad, brother of the complainant, for the ocular account. There are recoveries and then it is also part of the prosecution case that the dead body of deceased Rajab Ali had been dragged from the place of the incident to the house of co‑accused Ghulamoo by all the accused including respondent No.1 Allah Rakhio. No case for pre‑arrest bail had been made out. Perhaps the learned Additional Sessions Judge was considering the pre‑arrest bail application as if it was an application that had been filed by the respondent No.1 after he had been arrested. Mr. Rasool Bux Balouch learned counsel for the respondent No.1 had argued that a case of mala fides had been established and concession of bail extended to respondent No.1 had not been abused. It was also submitted that the respondent No.1 had not been assigned any role in the murder of deceased Rajab Ali and section 34, P.P.C. was not attracted but respondent No.1 had been falsely roped in for mala fide reasons and to cause harassment and humiliation to him and there was delay of about 10 hours in lodging the F.I.R. On the basis of the material available with the prosecution at this stage, in may view, it had not been shown that prima fact respondent No.1 has been implicated for mala fide reasons or that he has been falsely roped in with the object of humiliating or harassin him. Delay of 10 hours in lodging FIR, in the facts of the case, does not prima facie show mala fides on the part of the prosecution. As observed earlier, no case had been made out for grant of pre‑arrest bail to respondent Allah Rakhio as the conditions laid down by Supreme Court for grant of pre‑arrest bail had not been fulfilled by Allah Rakhio.
9. In the circumstances, Criminal Miscellaneous Application No. 647 of 1986 is allowed and the pre‑arrest bail granted to respondent No.1 Allah Rakhio by order dated 4‑9‑1986 of the learned Additional Sessions Judge, Badin is recalled. Allah Rakhio is directed to surrender before the trial Court forthwith failing which non‑bailable warrant be issued by the trial Court for taking him into custody. ?
10. A copy of this order will be forwarded to the learned Additional Sessions. Judge, Badin.
11. S. G. D./M‑320/K ?????????????????????????????????????????????????????????????????????????????? Bail cancelled.