JAMALUDDIN vs The STATE

ORDER

ZAFFAR HUSSAIN MIRZA, J.--On 25-10-1984 at about 6.30 a.m. One Sarho was murdered near village Chhattan Shah, Deh Baharpur, Taluka Khairpur Mirs. The First Information Report relating to this occurrence was lodged at Pir Goth Police Station, on the same morning at 10.30 a.m. By complainant Ashfaq brother of the deceased. According to the complainant on the day of occurrence, early in the morning, he alongwith his brother, the deceased, his maternal-uncle Rahim Ali and his maternal-cousin Ali Dad were going from their village, when at a short distance they were attacked by Ghulam Nabi, Rustom, Janan, Illahi Bux, Kalandar Bux, Ghulam Shabbir, Wali Muhammad, Aijaz, and petitioner Jamaluddin. Out of these persons five were said to have been armed with guns and except the petitioner rest were said to have been armed with hatchets. The petitioner was stated to be empty-handed. It is alleged that the culprits armed with guns fired at the deceased who was hit and fell on the ground, upon which the witnesses raised alarm on which some others were attracted. It is further alleged that Sarho was found to have received gunshot injuries and he informed the witnesses that he was hit by the gunfire by accused Ghulam Nabi. The injured was taken to the Civil Hospital, Pir Goth but he succumbed to his injuries on the way.

2. Four of the accused persons were arrested while the main accused, namely, Ghulam Nabi absconded. The petitioner and four other accused, namely, Janan, Rustom, Wali Muhammad and Ghulam Shabbir surrendered before the learned Sessions Judge, Khairpur and were released on bail in anticipation of their arrests on 13-11-1984. The application of to of the accused in custody, namely, Kalandar Bux and Aijaz for release on bail was dismissed by the trial Court. These accused, therefore, approached the High Court of Sind, Sukkur Bench, on considering whose application, the learned single Judge issued suo motu notice to the accused persons released before arrest, including the petitioner, to show cause why the bail granted to them may not be cancelled. By his order, dated 21-3-1985, the learned single Judge released Kalandar Bux and Aijaz on bail but by the same order cancelled the pre-arrest bail granted to the other five accused by the trial Court. The four accused, who were present were arrested there and then by the direction of the learned single Judge and were remanded to custody. The trial Court was directed to issue non-bail able warrants for the arrest of the petitioner who happened to be absent.

3. The petitioner has now come up before this Court and seeks leave to appeal from the order of the learned single Judge, dated 21-3-1985 cancelling his bail.

4. We have heard, Mr. Muhammad Hayat Junejo learned counsel appearing for the petitioner and Mr. Abdul Sattar Shaikh, Additional Advocate-General, has appeared for State on notice.

5. It has been pointed out by the learned counsel for the petitioner that the learned Judge in the High Court was not justified to order remand of the four accused persons to custody on setting aside the order of trial Court granting bail to them and directing the trial Court to issue non- bailable warrants against the petitioner. The law in this behalf was declared by this Court in Sadiq Ali v. The State PLD 1966 SC 589, in which it was held that the cancellation of pre-arrest bail by the Court, of an accused person who was not in custody and was admitted to interim bail, did not entail the consequence that he had to be ordered to be given into the police custody, without there being request in that behalf by the police itself. It was emphasised by this Court that the proper order to pass in these circumstances was to cancel ad interim bail and to leave the accused person to be dealt with by the police, as they thought fit. An order remanding such an accused person to custody was held to be vitiated by lack of jurisdiction. It follows from this dictum that the Court would also not be competent to place any other restraint upon such accused persons on the refusal or cancellation of his bail. Clearly, therefore, the direction for issue of non-bailable warrants, ipso facto on the cancellation of bail granted to the petitioner before arrest is unsustainable and not justified.

6. However, the main issue in the present proceedings is whether the learned single Judge was justified in cancelling the bail earlier granted to the petitioner. In this connection, we have examined the reasons that prevailed with the learned Judge in passing the order for cancellation of bail. We find that the learned Judge referred to a number of decisions of this Court bearing upon the principles for grant of anticipatory bail. In particular reference was made to Muhammad Hussain v. The State 1982 SCMR 227, Muhammad Shafiq and another v. The State 1982 SCMR 384, Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 and Zia-ul-Hassan v. The State PLD 1984 SC 192. After referring to these decisions the learned Judge observed that the grant of anticipatory bail on merits has been disapproved; that it is not possible for the High Court to declare that the complaint against the petitioner is completely false; and that different principles apply in the case of pre-arrest bail and bail after arrest. After stating these principles the reasoning part of the order of the learned single Judge reads as under: "In this case incident took place on 25-10-1984, the respondents moved application for pre-arrest bail on 1-11-1984 and finally on 31-11-1984, bail was granted when case was still under investigation.

The Supreme Court in case of Zia-ul-Hassan v. The State PLD 1984 SC 192 held that trial Court granting interim pre-arrest bail within few days of registration of case without application of mind to serious question the cancellation in the circumstances .Was held justified. The recovery of crime weapon and other evidence was possible if law was allowed to have taken its own course."

7. It has been urged by the learned counsel for the petitioner that the learned Judge while holding that, there was no justification for the grant of anticipatory bail to the petitioner, did not advert to the reasons that prevailed with the learned Sessions Judge, Khairpur, in admitting the petitioner to bail before arrest. He submitted that it was argued before the learned Sessions Judge on behalf of the petitioner that his womenfolk were illegally taken to the police station and that the police was bent upon insulting, humiliating and harassing the petitioner as was done by them in collusion with the complainant party in the past. He further submitted that according to the prosecution version disclosed in the F.I.R. The petitioner was empty handed and, therefore, there was no question of the recovery of crime weapon from him. He also pointed out that all the accused now stand admitted to bail except the main culprit, namely, Ghulam Nabi who is absconding. Learned Additional Advocate-General has also not supported the impugned order before us and has submitted that serious allegations of mala fide were made before the learned Sessions Judge.

8. After hearing the learned counsel, we find that the learned Sessions Judge in his order observed that the State had no objection for the grant of bail to the petitioner and the four other applicants for pre-arrest bail. Further reasons that impressed the learned Sessions Judge were that the deceased had not implicated the petitioner in the commission of the offence, that admittedly there existed enmity between the parties, that no empty was found at the scene of occurrence, and that there were many criminal cases between the parties. In regard to the mala fide of the police the learned Sessions Judge observed:-- "Due to enmity the names of the applicants appear in the F. I. R., therefore, they apprehend their imminent arrest as such they have surrendered themselves before this Court and the police in collusion with the complainant party is after them on account of ulterior motive and if arrested they will be harassed by the police as such they will suffer undue irreparable humiliation by means of unjustified arrest and more over they are entitled for concession of bail on the ground that the deceased has not implicated the present applicants/ accused in commission of the offence of this case."

9. We find that unfortunately the learned Judge in the High Court did not take into consideration these weighty grounds upon which the order of the learned Sessions Judge was founded. This Court that the grant or refusal of bail in criminal cases primarily depends upon the facts of each case and no hard and fast rules can be laid down in this regard has laid it down. In Murad Khan's case to which E reference was made by the learned Judge, this Court reiterated the principle that arrest for ulterior motives such as humiliation and unjustified harassment was a valid consideration for grant of pre-arrest bail. Similar rule was laid down in Zia-ul-Hassan's case. In our opinion, therefore, the. Order of the learned Sessions Judge, did not in any respect, disregard the well-recognized principle for grant of pre-arrest bail to the petitioner. Without upsetting the finding, reached by the learned Sessions Judge that the petitioner had been involved for ulterior motives of harassing due to enmity existing between the parties, the learned Judge in the High Court was not justified to invoke his suo motu powers for the purpose of cancelling the order of bail.

10. We, therefore, convert this petition into an appeal and allow the same. In the result the appellant is granted bail in the sum of Rs.20,000 with one surety in the like amount to the satisfaction of the Sessions Judge, Khairpur.