ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
HYDERABAD.
Cr.Bail.Appl.No.S- 1142 of 2014
DATE ORDER WITH SIGNATURE OF JUDGE
13.10.2015.
Mr. Aghis-u-Salam Tahirzada, Advocate for applicant a/w applicant.
Mr. Zahid Mallah, Advocate for complainant.
Mr. Shahid Shaikh, A.P.G. for the State.
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NAIMATULLAH PHULPOTO, J: Applicant / accused Ghulam Mustafa Soomro seeks pre-arrest bail in Crime No.46/2014 registered at Police Station Bulri Shah Karim on 19.07.2014 at 1400 hours, u/s 324, 504, 34 PPC. After the death of injured, Section 302 PPC was added.
2. The brief facts of the prosecution case as disclosed in the FIR are that complainant Muhammad Sadiq and applicant Ghulam Mustafa s/o Haji Ahmed Soomro and others had a dispute over the land. On 18.07.2014 complainant alongwith his maternal uncle Khalil Ahmed s/o Muhammad Hassan aged about 45 years (now deceased), PWs Abdul Rehman s/o Adam Soomro and Rasheed Ahmed s/o Muhammad Ahsan Soomro were returning to home after offering ‘Travih’ prayer in the month of Ramzan. At about 10-00 p.m, when they reached at Jinhan Soomro road near Eidgah, where they saw three accused persons namely (1) Ghulam Mustafa s/o Ahmed Soomro, (2) Abdul Khalique s/o Ghulam Mustafa Soomro both armed with daggers and (3) Abdul Ghafoor s/o Ghulam Mustafa Soomro empty handed. It is alleged that accused persons challenged to deceased Khalil Ahmed and asked him that as to why he was disallowing the accused persons from passing from the land and declared that he would not be spared. It is alleged that accused Ghafoor Soomro caught hold Khalil Ahmed and accused Ghulam Mustafa and Abdul Khalique who were armed with daggers, caused dagger blows to Khalil with intention to kill him. Khalil Ahmed sustained injuries at his stomach, head and back side. Due to loss of the blood, he went unconscious. Thereafter, accused persons while abusing went away. Complainant made arrangement of the conveyance. In the meanwhile, PW Muhammad Umar s/o Muhammad Siddique Soomro arrived there, complainant sent him to police station for obtaining the letter for immediate shifting of injured Khalil Ahmed to the Hospital as he was serious. Thereafter, injured was taken to the Hospital and complainant proceeded to the police station and lodged FIR against the present applicant / accused and two others. It was recorded on 19.07.2014 at 1400 hours u/s 324, 504, 34 PPC. Khalil Ahmed succumbed to the injuries on 21.07.2014 in the Hospital and Section 302 PPC was added by the Investigation Officer.
3. Applicant / accused applied for pre-arrest bail, the same was rejected by learned Sessions Judge, Tando Muhammad Khan vide order dated 26.08.2014. Thereafter, he approached this Court for same relief.
4. Mr. Aghis-u-Salam Tahirzada, learned advocate for applicant / accused Ghulam Mustafa Soomro argued that there was delay of 16 hours in lodging of the FIR without explanation. It is also argued that applicant / accused was residing at the time of incident at Karachi and he was hospitalized. In this respect, medical certificate of Lohana Medical Center is produced. It is further argued that allegations are of general in nature against the applicant / accused. It is further contended that no independent witness has been examined by the Investigation Officer during investigation. Lastly, it is argued that all the family members of applicant have been involved in this case. In support of his contentions, he has relied upon the cases reported as Muhammad Aslam and another v. The State through A.G. Punjab and another (1997 SCMR 251), Shafi Muhammad v. The State (2002 P.Cr.L.J 494) and Malik Ejaz Ali v. The State (2005 MLD 997).
5. Mr. Shahid Shaikh, learned A.P.G. assisted by advocate for complainant argued that immediately after the incident complainant sent PW Muhammad Umar s/o Muhammad Siddique Soomro to the police station for obtaining letter for referring the injured to Hospital as he was serious. He has argued that delay in lodging of the FIR has been explained. He has further contended that part has been assigned to the present applicant / accused in the commission of offence and ocular evidence is corroborated by medical evidence. It is also argued that plea of alibia was not raised by applicant / accused during investigation and it is after thought / managed. Lastly, it is argued that ingredients for grant of pre-arrest bail are not satisfied. In support of his contentions, reliance has been placed on the cases reported as Haroon Badshah v. The State and another (2005 P.Cr.L.J 1191) and Jan Muhammad v. State (2000 MLD 1046).
6. I have carefully heard the learned counsel for the parties and perused the relevant record.
7. From the perusal of FIR, it transpires that applicant / accused Ghulam Mustafa and Abdul Khalique caused dagger blows to deceased Khalil Ahmed at his various parts of body. Postmortem report corroborates the ocular version. As regard to the plea of alibia that at the time of incident applicant / accused was admitted in hospital and has produced certificate allegedly issued by concerned hospital. Plea of alibia can only be decided finally when record of hospital would be called and concerned Doctor would be examined, because in such matter the very identity of accused is to be considered. Plea of alibia requires deeper appreciation, it is not permissible at bail stage. As regard to the delay in lodging of FIR is concerned, it has been sufficiently explained. As regard to the scope of pre-arrest bail is concerned, the bail before arrest is meant to protect innocent citizens who have been involved in heinous offences with malafide and ulterior motive on part of Investigation Officer or complainant. While seeking pre-arrest bail, it is the duty of accused to establish and prove specific malafide on the part of Investigating Agency or the complainant. Bail before arrest is an extraordinary relief which cannot be granted unless person seeking it satisfies conditions specified u/s 497(2) Cr.P.C. and establishes existence of reasonable grounds leading to believe that he is not guilty of the offence alleged against him and there are in fact sufficient grounds warranting further inquiry as held by Honourable Supreme Court of Pakistan in the case of Muhammad Sadiq and others v. The State (2015 SCMR 1394). Relevant portion is reproduced as under:-
“Considerations for pre-arrest bail are totally different from that of post-arrest bail. Pre-arrest bail is an extraordinary relief, whereas the post arrest bail is an ordinary relief. While seeking pre-arrest bail it is duty of accused to establish and prove malafide on the part of the Investigating Agency or the complainant. Bail before arrest is meant to protect innocent citizens who have been involved in heinous offences with malafide and ulterior motive. Admittedly the petitioners’ first bail application was dismissed on merit. It is also an admitted fact that against the order of dismissal of the said application, the petitioners moved Crl. Misc. No. 14011-B/14 before the learned High Court which was withdrawn vide order 11.11.2014. Thus, the remedy available to the petitioners was finalized up to the High Court and the only forum available to the petitioners was to approach this Court. Bail before arrest cannot be granted unless person seeking it satisfy conditions specified under section 497(2) of the Cr.P.C. and establishes existence of reasonable grounds leading to believe that he is not guilty of offence alleged against him and there are in fact sufficient grounds warranting further inquiry. If one fails to prove any malafide or ulterior motive in the first pre-arrest bail petition before the learned Additional Sessions, Judge or before the learned High Court then the only remedy available to him is of challenging the said order before this Court or before the learned High Court in case the bail before arrest is declined by the learned Sessions Court. Filing of pre-arrest bail petition again and again amounts to misuse of law and it also increases the backlog of the Courts and this growing trend should have to be stopped by the learned Courts below. When the second application was withdrawn by the learned counsel for the petitioners, the petitioners could not avail the said remedy even after the deletion of section 365, P.P.C. by the investigating officer as it had attained finality but the petitioners adopted the policy of hide and seek by moving a number of applications. In this respect the learned Additional Sessions Judge has passed a well reasoned order. It has been pointed out that at the time of dismissal of second application, learned counsel for the petitioners requested the Court to grant protective bail to the petitioners in order to enable them to approach the concerned Court and the High Court without taking into consideration that the bail application, moved by the petitioners, has already been dismissed granted protective bail to the petitioners. We are constrained to hold that the learned Judge-in-Chambers while granting protective bail to the petitioners has not applied the correct law as their application could not be entertained.”
8. In the present case applicant / accused has failed to establish and prove the malafide on the part of complainant or Investigating Agency. Prima facie there appears reasonable grounds for believing that applicant / accused has committed an offence punishable with death or imprisonment for life.
9. For what has been discussed above, no case for grant of pre-arrest bail to the applicant / accused is made out. Consequently, bail before arrest application moved on behalf of the applicant / accused is dismissed. The interim pre-arrest bail already granted to the applicant / accused is hereby recalled.
10. Needless to mention here that observations made hereinabove are tentative in nature and the trial Court while deciding the case on merits shall not be influenced upon by said observations.
JUDGE
Tufail