ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail App. No. S – 85 of 2020

Date of hearing

Order with signature of Judge

 

For hearing of bail application

 

16.03.2020

 

Mr. Faiz Muhammad Brohi, Advocate for applicant / accused.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

 

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            Applicant / accused Gul Hassan Kalwar seeks pre-arrest bail in crime No.03/2020 registered at Police Station, Wada Machion, District Khairpur for offences under Sections 406, 420, PPC.

2.         Brief facts of the prosecution case are that on 17.10.2019, complainant along with his relatives Muhammad Panah and Mir Murtaza was standing outside of the village on the road. At about 09:00 a.m., applicant Gul Hassan, resident of Lakhi Ghulam Shah along with two un‑identified persons came there and asked complainant that he has been awarded a contract of the road of the village and stated that applicant requires labour as one munshi and two labourers. It is further stated that applicant declared that he would pay daily Rs.1,500/- to the munshi and Rs.1,200/- to the labourers. Thereafter, complainant started measurements of the road. In the meanwhile, applicant / accused, by cheating, asked complainant to give him mobile phone and he gave him the same. After some time, complainant demanded return of the mobile from the accused, but accused disappeared. Complainant approached applicant / accused Gul Hassan through his Nekmard in his village but he kept him on false hopes. Finding no other way, complainant went to the police station and lodged FIR at Police Station, Wada Machion on 10.01.2020 at 1500 hours; it was recorded vide Crime No.03/2020 under Sections 406, 420, PPC.

3.         Applicant / accused applied for pre-arrest bail before learned 2nd Additional Sessions Judge, Khairpur, but the same was rejected by him vide order dated 30.01.2020. Thereafter, the applicant has approached this Court for same relief.

4.         Learned Advocate for the applicant / accused mainly contended that incident had occurred on 17.10.2019, but it was reported to the police on 10.01.2020 and delay in lodging of the FIR has not been explained. It is submitted that alleged offences do not fall within the prohibitory clause of Section 497, Cr.P.C. It is further submitted that false FIR has been lodged by the complainant for the mala fide reasons and prayed for grant of pre-arrest bail.

5.         Mr. Zulfiqar Ali Jatoi, learned Addl. P.G argued that ingredients for grant of pre-arrest bail are not made out in this case. It is further submitted that complainant and other PWs have fully implicated the applicant in the commission of offence. Learned Additional P.G lastly submitted that it is a case of cheating and dishonestly inducing delivery of property. In support of his contentions, he has relied upon the judgment of Hon’ble Supreme Court in Criminal Petition No.169 of 2020 (Ghulam Farooq Channa V/S Special Judge ACE (Central-I) Karachi & another).

6.         I have carefully heard the learned counsel appearing for the parties and perused the relevant record. It appears that name of the applicant / accused transpires in the FIR; he has been implicated by the PWs in their 161, Cr.P.C statements; alleged offences are cognizable and non-bailable. Admittedly, applicant did not join the investigation. Prima facie, there appears reasonable grounds for believing that applicant has committed alleged offence. Ingredients for grant of pre-arrest bail to applicant / accused are missing in the case.

7.         Grant of bail to an accused required in a cognizable and non-bail offence prior to his arrest is an extraordinary judicial intervention in an ongoing or imminent investigative process. It clogs the very mechanics of State authority to investigate and prosecute violations of law designated as crimes. To prevent arrest of an accused where it is so required by law is a measure with far reaching consequences that may include loss or disappearance of evidence. The Statute does not contemplate such a remedy and it was judicially advented way back in the year 1949 in the case of Hidayat Ullah Khan Vs. The Crown (PLD 1949 Lahore 21) with purposes sacrosanct and noble, essentially to provide judicial refuge to the innocent and the vulnerable from the rigors of abuse of process of law; to protect human dignity and honour from the humiliation of arrest intended for designs sinister and oblique. The remedy oriented in equity cannot be invoked in every run of the mill criminal case, prima facie supported by material and evidence, constituting a non-bailable / cognizable offence, warranting arrest, an inherent attribute of the dynamics of Criminal Justice System with a deterrent impact: it is certainly not a substitute for post arrest bail as held in the recent judgment passed by Hon'ble Supreme Court in Criminal Petition No.169 of 2020 (Ghulam Farooq Channa V/S Special Judge ACE (Central-I) Karachi & another).

8.         For the above stated reasons, this pre-arrest bail application merits no consideration and the same is dismissed. Interim pre-arrest bail already granted to the applicant / accused is hereby recalled.

 

 

J U D G E

Abdul Basit