GHULLAM RASOOL vs KHADIM HUSSAIN And Others

Khadim Hussain respondent No.1, who was wanted in Crime No. 313 of 1980, `A' Section Police Station Khairpur, under section 302/114/34, P.P.C. And section 13-D of the Arms Ordinance, 1965, apprehending,, his arrest approached the Court of Session, Khairpur, seeking pre-arrest bail. He was granted interim bail on 20-2-1990, which was subsequently confirmed by learned Sessions Judge, Khairpur vide order dated 5-3-1990. Sakhi Bux alias Sakhidino and Mehboob, respondents Nos.2 and 3, respectively were arrested in the above crime. They applied for bail after arrest and were allowed bail by learned Sessions Judge, Khairpur, by the same order dated 5-3-1990.

Applicant Ghulam Rasool who is complainant in the aforesaid crime has - now approached this Court seeking cancellation of bail granted to respondents Khadim Hussain, Sakhi Bux alias Sakhidino and Mehboob.

2. This regrettable episode is a sequel to an ordinary matter. There was a dispute between Khadim Hussain, respondent No-1 and one Machando Shambani. Khadim Hussain suspected deceased Shafi Muhammad to be a supporter of said Machando Shambani. It is alleged that on 24-12-1989, applicant Ghullam Rasool and his brother deceased Shall Muhammad left for Khairpur on a motor- cycle for shopping. At about 12 noon they stopped near the hotel of Rustam Pathan on National Highway where P.Ws. Abdul Hakim and Naimatullah were also standing. It is the case of the prosecution that the applicant proceeded to purchase cigarettes, when all the three respondents emerged there alongwith co-accused Urs. Accused Urs was armed with a country made pistol.

Khadim Hussain, respondent No.1 was armed with a revolver, while rest of the respondents had lathis with them. It is, further, alleged by the prosecution that on the instigation of Khadim Hussain, respondent No. 1, co---accused Urs fired the fatal shot at deceased Sitar Muhammad, which hit him on chest. The respondents were raising LALKARA. Khadim Hussain, respondent No.1 is said to have fired in the air to prevent the witnesses from intervening. Besides applicant Ghulam Rasool the incident was witnessed by Abdul Hakim and Naimatullah. Shari, Muhammad was carried to Civil Hospital, Khairpur, where he died. On the same day applicant Ghulam Rasool lodged F.I.R.

Which was recorded at 1 p.m. After usual investigation all the four accused were sent up to stand trial. Khadim Hussain, respondent No.1 was shown in column No.2 as an absconder.

3. I have heard Mr. Muhammad Nawaz Shaikh, learned counsel for applicant, Mr. Liaquat Ali Shar, learned counsel for respondents Nos.1 to 3, and Mr. Zawar Hussain Jafferi, learned A.A: G. For State.

The learned AA.-G. Has supported the order dated 5-3-1990, by which bail was granted to respondents Nos. 1 to 3.

4. Mr. Muhammad Nawaz Shaikh, learned counsel for applicant has contended with force that there is nothing on record to show that the apprehended arrest of Khadim Hussain, respondent No.1 was for ulterior motive, and his case was covered by the criteria laid down in Murad Khan v. Fazal-e---Subhan and another, reported in PLD 1983 SC 82. The learned Sessions Judge in his well-considered order met this argument in the following words: "Mr. Kazi further contended that the applicant has alleged that police is bent upon to arrest him with mala fide intention for ulterior motive to harassment and humiliation by affidavit filed in support of the application. It has not been controverted by the prosecution and complainant."

The learned Sessions Judge while examining the case in the light of observations made in Murad Khan v. F"-e-Subhan and another, reported in PLD 11983 SC 82, Zia-ul-Hasan v. The State, reported in PLD 1984 SC 192, and Jariaaluddin v. The State, reported in 1985 SCMR 1949, stated as under: "In the present case the applicant Khadim Hussain Fakir in his own affidavit has alleged the mala fides on the part of the police in order to arrest him for humiliation. He stated in clear terms in para No.6 about raiding of his house by Sub-Inspector Raja and police officials and threat to his family that unless he appears before them they will remove his women-folk on 19-2-1990 in the night, his family is in crisis due to police collusion and harassment. The applicant claims to be a Fakir and well --known person and he seriously apprehends his arrest and if he would be arrested by the police his honour, profession, dignity and integrity will be seriously jeopardised. The allegation of intended arrest with mala fide intention in order to harassment and humiliation has not been controverted."

5. A point which was touched upon by Mr. Muhammad Nawaz Shaikh, learned counsel for applicant during the course of arguments may now be dealt with. It was stated that Raja Sub-Inspector whose reference finds place in the affidavit of Khadim Hussain, respondent No.1 was already transferred and, therefore, question of giving threats to the family members of this respondent did not arise. When asked to explain this position, the learned AA.-G. Stated that the police papers are silent about the transfer of the said police officer. I am, therefore, unable to accept both these contentions raised on behalf of applicant, which are in the nature of a forlorn hope.

6. It is also contended on behalf of applicant that Khadim Hussain, respondent No.1 being a fugitive from justice was not entitled to the grant of bail. Reliance is placed upon the cases of Awal Gul v.

Zawar Khan etc. Reported in PLD 1985 SC 402, and Najeeb Gul v. Khalid Khan and another, reported in 1989 SCMR 899. The record, however, shows that Khadim Hussain, respondent No.1 was never declared as proclaimed offender and action under section 87/88, Cr.P.C was not taken against him. The learned counsel for applicant should have known that a complete answer to his contention is furnished by the Supreme Court in the case of Khan Mir v. Amal Sherin alias Kamal and 2 others, reported in 1989 SCMR 1987, wherein it was held that where proceedings under sections 87 and 88, Cr.P.C. Are not drawn against an accused, he cannot be said to be an absconder.

7. I now proceed to examine the case against Khadim Hussain, respondent No.1 on merits. It is alleged that he had instigated co-accused Urs, who as a result of this instigation fired fatal shot at deceased Shafi Muhammad by means of a country made pistol in which .12 bore cartridge is used.

Admittedly, Khadim Hussain who was allegedly armed with a revolver did not fire at deceased Shafi Muhammad or to any of the three prosecution witnesses. The fact that he was firing in the air to scare the witnesses stands falsified from the mashirnama of wardat, which shows the recovery of only one empty cartridge of .12 bore. The facts of the incident as unfolded in the F.I.R. Again make it clear that it was not a premeditated offence, as there is nothing on record to even faintly suggest that the respondents had reason to believe that applicant and his brother deceased Shafi Muhammad would pass from that particular spot at that particular time and would stop at National Highway to purchase cigarettes.

8. The object of pre-arrest bail is to save innocent persons from being unnecessarily harassed by being arrested in cases initiated by motivated persons. The mere mention of a persons name in F.I.R is not sufficient to reject his prayer of anticipatory bail without a consideration of other ingredients required to be taken in view in this context. No exception can, therefore, be taken to the order by which bail before arrest was granted to Khadim Hussain respondent No. 1.

9. The case against Sakhi Bux alias Sakhidino, respondent No.2, and Mehboob, respondent No.3 is very simple. According to F.I.R, they were present at the scene of occurrence and were raising LALKARA. No overt act is attributed to them and the case against them needs further inquiry within the meanings of subsection (2) of section 497, Cr.P.C. The learned counsel for applicant has cited the cases reported as Iqbal v. That State 1982 SCMR 84, Aftab Ali v The State PLD 1986 Kar 348, Mst. Fazeelat Bibi v. Karam Khan and others 1986 SCMR 1681, Mubarak Shah v The State 1986 SCMR 1618 and Ghulam Nabi and another v. The State 1989 P Cr. L J 126 in an attempt to show that both these respondents having acted in pre-concert were not entitled to the grant of bail. The facts of all these cases are, however, distinguishable. Everything said in a judgment more particularly in a criminal judgment must be understood as having been said with reference to the facts of that particular case. This in fact is the view of the Supreme Court. There cannot be any generalisations on matters which primarily rest upon the exercise of discretion and any computerised treatment given to cases of similar nature with different facts is likely to frustrate the very purpose of exercise of discretion. Again the Courts competent to cancel bail are always slow to cancel the bail once granted in proper exercise of discretion.

10. For the foregoing reasons, I see no merits in the application made under subsection (5) of section 497, Cr.P.C. Seeking cancellation of bail granted to respondents Nos. 1 to 3. The application is, therefore, dismissed. By a short order dated 23-8-1990, I had dismissed the application and these are reasons for the I said order.