ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

1. Cr. B.A. No.S-951 of 2012.

2. Cr. B.A. No.S-227 of 2013.

DATE ORDER WITH SIGNATURE OF JUDGE

Date of hearing and decision: 26.10.2015.

Syed Zakir Hussain Shah, Advocate for the applicants/accused.

Applicants/accused are present on interim pre-arrest bail.

Mr. Shahid Ahmed Shaikh, A.P.G.

Mr. Ghulam Hussain Malano, Advocate for the complainant.

NAIMATULLAH PHULPOTO, J.- By this common order, Cr. B.A. No.S-951/2012, moved on behalf of applicant/accused Ghulam Nabi, and Cr. B.A. No.S-227/2013, moved on behalf of applicants/accused Waheed Ali and Anwar Ali, are being disposed of, as both applications have arisen out of one and same crime.

2. Applicants/accused Waheed Ali, Anwar Ali and Ghulam Nabi have applied for pre-arrest bail in Crime No.112/2012, registered at Police Station Digri, under sections 302, 114 and 34 P.P.C.

3. Brief facts of the prosecution case as disclosed in F.I.R. are that on 01.11.2012, complainant Ghulam Muhammad lodged F.I.R, alleging therein that on 30.10.2012, his brother Meer Muhammad Kaloi (now deceased) after taking meals was sleeping near Masjid for looking after his tractor. Complainant woke up at about 03.00 a.m. for passing urine and he heard cries coming from the side of Masjid. Thereafter, complainant called his brothers Muhammad Siddique and Niaz Muhammad and by taking torches went towards Masjid. Where they saw applicants/accused Waheed Ali, armed with Soti and Anwar Ali, armed with lathi, Ghulam Nabi and Ghulam Muhammad empty handed. It is alleged that accused Ghulam Nabi and Ghulam Muhammad instigated co-accused Waheed Ali and others to kill Meer Muhammad Kaloi, on their instigation it is alleged that applicants/accused Waheed Ali and Anwar Ali caused Soti and Lathi blows on the head of Mir Muhammad. Mir Muhammad fell down. On the cries of the complainant party, accused ran away and Mir Muhammad went unconscious. He was taken to Sindh Medical Centre Digri, from where he was referred to Civil Hospital, Hyderabad where Mir Muhammad succumbed to injuries. F.I.R. of the incident was lodged by complainant Ghulam Muhammad and it was recorded on 01.11.2012 under sections 302, 114 and 34 PPC.

4. During investigation, 161 Cr.P.C. statements of the P.Ws were recorded; accused Ghulam Muhammad was arrested on 02.11.2012. After completion of usual investigation, challan was submitted against the accused under above referred sections, in which accused Waheed Ali, Anwar Ali and Ghulam Nabi were shown as absconders.

5. Applicants/accused applied for pre-arrest bail before learned Ist. Additional Sessions Judge, Mirpurkhas, the same was rejected by him vide order dated 13.11.2012. Thereafter, applicants/accused have approached this Court for same relief.

6. Syed Zakir Hussain Shah, learned counsel for the applicants/accused argued that there is delay of about 30 hours in lodging of the F.I.R, for which no plausible explanation has been furnished. It is argued that role of instigation is assigned to applicant/accused Ghulam Nabi and co-accused Ghulam Muhammad having same role of instigation has already been granted bail after arrest by trial Court on 02.04.2014. He has argued that on the rule of consistency, applicant/ accused Ghulam Nabi is entitled for grant of pre-arrest bail. It is next argued that it is not clear who caused fatal injury to deceased. It is also argued that ocular evidence is contradictory to the medical evidence; there is only one injury as per post-mortem report caused to the deceased by hard and blunt substance. He further argued that all the P.Ws. have been examined by the trial Court except mashirs and Investigating Officer. Lastly, it is argued that there is enmity between the parties and false implication of the accused cannot be ruled out. In support of his contentions, learned counsel for the applicants/accused relied upon the cases of Meeran Bux v. State (P L D 1989 Supreme Court 347) and Kabeer Abid and others v. State (2008 M L D 1293 (Lahore).

7. Mr. Shahid Ahmed Shaikh, learned A.P.G. assisted by Mr. Ghulam Hussain Malano, learned counsel for the complainant, recorded no objection for grant of pre-arrest bail to the applicant/accused Ghulam Nabi on the rule of consistency as co-accused Ghulam Muhammad having similar role of instigation has already been granted bail by the trial Court. However, he has strongly opposed pre-arrest bail application of applicants/accused Waheed Ali and Anwar Ali and argued that they had caused Soti and Lathi blows to the deceased at his head and medical evidence corroborates the ocular evidence. Regarding the number of the injuries, A.P.G. argued that it requires deeper appreciation, which is the exclusive function of the trial Court. He next argued that delay in lodging of the F.I.R. has sufficiently been explained. Lastly he has argued that ingredients for grant of pre-arrest bail to applicants/accused Waheed Ali and Anwar Ali are missing in this case, they had also not joined investigation. Learned A.P.G. relied upon the cases of Malik Aqeel v. State (2011 S C M R 170), Ghulam Ahmed Chishti v. State (2012 S C M R 649), Meeral v. State (2010 P Cr. L J 1300 (Karachi), Yaseen v. State (2012 M L D 751 (Sindh) and Muhammad Sadiq and others v. The State (2015 S C M R 1394).

8. I have carefully heard the learned counsel for the parties and perused the relevant record.

9. In the F.I.R. and 161 Cr.P.C. statements of the P.Ws, it is clearly mentioned that applicants/accused Waheed Ali and Anwar Ali caused Soti and Lathi blows to the deceased at his head. Medical Officer in the post-mortem report has mentioned that deceased had received injury on head by hard and blunt substance. As regards the number of injuries, case has proceeded before trial Court and evidence of Medical Officer has already been recorded. Deeper appreciation of the evidence is not permissible at this stage. Apparently, delay in lodging of the F.I.R. has also been explained. Ingredients for grant of pre-arrest bail are missing in this case. 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.”

10. In view of above, prima facie, ample material/evidence is available with prosecution to connect the applicants/accused Waheed Ali and Anwar Ali with the commission of offence. No malafide has been attributed to complainant or investigation officer. Thus, applicants/accused Waheed Ali and Anwar Ali are not entitled for grant of pre-arrest bail. Their bail application is dismissed and interim pre-arrest bail already granted to them by this Court vide order dated 25.03.2013 is hereby recalled. However, case of applicant/accused Ghulam Nabi is distinguishable. I think case of Ghulam Nabi is at par with that of co-accused Ghulam Muhammad who has already been granted bail after arrest by the trial Court vide order dated 02.04.2014. No useful purpose will be served by remanding applicant/accused Ghulam Nabi to jail. Rightly reliance is placed upon the case of Muhammad Yousaf Vs The State (1983 S C M R 102). Accordingly, interim pre-arrest bail already granted to applicant/accused Ghulam Nabi by this Court vide order dated 22.11.2012 is hereby confirmed on same terms and conditions.

11. 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.

Bail applications stand disposed of.

JUDGE