MUHAMMAD ISMAIL vs GHOUS BUX and another

ORDER

' Ghous Bux, respondent No,1, who is working as Headmaster, Government Primary School, Kiri Atta Muhammad, Shikarpur, apprehending his arrest in Crime No,79 of 1989, Bagerji Police Station under section 302/34/114, P.P.C. And section 13-D of the Arms Ordinance, 1965, approached IIIrd Additional Sessions Judge, Shikarpur, for pre-arrest bail which was allowed vide order dated 18-9-1989.

Applicant Muhammad Ismail who is complainant in the said crime has now come to this Court for cancellation of bail granted to respondent Ghous Bux.

2. This regrettable episode is a sequel to an ordinary occurrence having taken place over an exchange of hot words between deceased Abdul Ghaffar alias Shafique Ahmad and the accused persons about 15 days prior to this incident. The role attributed to respondent Ghous Bux in F.I.R. Is that he instigated co-accused Fakir Muhammad, Nazir and Allah Dino to commit the murder of Abdul Ghaffar alias Shafique Ahmed, who in consequence thereof was given fire-arm and lathi injuries resulting into his death.

3. I have heard Mr. Muhammad Daud Baluch, learned counsel for applicant, Mr. Noor Muhammad Soomro, learned counsel for respondent No,1, and Mr. Zawar Hussain Jafferi, learned A.A.-G. For State.

4. It is contended on behalf of applicant that the prerequisites for the grant of pre-arrest bail as laid down in the case of Murad Khan v. Fazal-e-Subhan and another, reported in PLD 1983 SC 82, were not satisfactorily proved, and thus the bail granted to respondent No,1 was liable to be cancelled.

4-A. Section 498, Cr.P.C. Empowers the Court of Sessions and the High Court to grant pre-arrest bail in cases of exceptional nature, but this power is to be exercised when the pre-conditions laid down by the superior Courts from time to

(i) Arrest being for ulterior motives such as humiliation and unjustified harassment.

(ii) Prosecution motivated by motive so as to cause irreparable injury to reputation and liberty, and

(iii) Motivation of police on political consideration.

5. The scope of before arrest was further enlarged in the case of Jamaluddin v. State report-4 in 1985 SCMR 1949 wherein it was held:- "It has been laid down by 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. In Murad Khan's case to which 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."

6. In Miran Bux v. The State and another reported in PLD 1989 SC 347 the merits of the case were made basis for making out a case of pre-arrest bail which is evident from the following observations:- "Apart from this we find that the Sessions Judge granted the pre-arrest bail to the appellant after considering the merits of the case inasmuch as he inter alia observed that the injury alleged to have been caused by the appellant to the leg of the deceased by gunshot was according to be postmortem note, neither fatal nor was caused on the vital part of the body and was declared to be simple and that it was a case of further inquiry so far as the appellant is concerned."

' At page 350, it was further observed:-- "Since the appellant remain on bail for more than one year before the bail was cancelled by the High Court without abusing the concession of bail in any manner and the reason given by the learned Sessions Judge for granting pre-arrest bail that the injury was on non-vital part of the body of deceased i,e, thigh and was simple, was not without foundation, we would, therefore, in the circumstances, set aside the impugned order of the High Court and restore the order of the Sessions Judge granting the pre-arrest bail."

7. It will, therefore, be seen that the scope of rule laid down in Murad Khan's case has been much widened, which is also evident from the observations made by Ajmal Mian, C.J. (as he then was) in the case of Jam Sadiq Ali v. The State reported in 1989 P Cr. L J 1910, wherein it was held that merits of the case can be touched while granting pre-arrest bail.

8. The law of bails is not a static law but is growing all the times moulding itself with the changed situations. In my view the conditions laid down in Murad Khan's case are only illustrative. It need hardly be emphasised that provisions of pre-arrest bail are to be invoked where for some extraneous considerations unfounded charge may be brought against innocent persons, which may cause harassm ent and humiliation to them. Where the accused is able to satisfy the Court that he is being involved by some motivated person he need not specifically plead mala fides, because such cases are instituted only to disgrace the person accused of a criminal charge.

9. The respondent No,1 is a Government servant working as a Headmaster of a Primary School. No overt act is attributed to him except that he instigated co-accused to commit the murder of Abdul Ghaffar alias Shafique Ahmed. Besides being disgraced he is likely to be placed under suspension, if arrested on a charge of murder on such evidence which certainly makes out a case of further enquiry.

10. No exception can, therefore, be taken to the order of learned Additional Sessions Judge granting bail to respondent No,1. There is no merit in the application for cancellation of bail, which is accordingly dismissed.