Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail App. No. S – 472 of 2019

Date of hearing : 20.09.2019.

Mr. Ubedullah Ghoto, Advocate for applicant / accused.

Complainant Ahmed, present in person.

Syed Sardar Ali Shah, Additional Prosecutor General.

O R D E R

NAIMATULLAH PHULPOTO, J. – Applicant / accused Panhwar son of Attur seeks pre-arrest bail in Crime No.191/2019 registered at P.S Ghotki on 22.08.2019 at 2000 hours for offences under Sections 337-A(iii), 337‑F(i), 337-L(ii), 504, PPC.

2. Brief facts of the prosecution case, as disclosed in the FIR, are that on 16.08.2019, complainant Ahmed along with his brother Muhammad Bux and cousin Mir Ahmed was going to the land for spray. They reached near the land in Deh Raharki at 0830 hours, where it is alleged that applicant / accused Panhwar, Dildar, Gul Mir, all sons of Attur and Abdullah alias Nandho son of Allah Dad, all by caste Kobhar appeared. It is further alleged that accused Panhwar Kobhar abused the complainant over the matrimonial affairs and declared that he would learn the lesson to the complainant party. Thereafter, he caused soti blow at the nose of Muhammad Bux; accused Dildar also caused soti blow to Muhammad Bux at his shoulder and accused Gul Mir caused soti blow to Muhammad Bux at his forehead. Accused Abdullah alias Nandho gave fist and kick blows to the injured. Complainant party raised cries, which attracted the persons of the locality and accused went away while abusing the complainant party. Complainant went to the Police Station on the same date within half an hour at 0900 hours, and reported the matter and injured was referred to the hospital. After receipt of medical certificate, case was registered against the accused under the above referred sections.

3. After usual investigation, challan has been submitted against the accused under Sections 337-A(iii), 337‑F(i), 337-L(ii), 504, PPC.

4. Applicant / accused applied for pre-arrest bail before learned III^rd Additional Sessions Judge, Mirpur Mathelo; the same was rejected by him vide order dated 04.09.2019. Thereafter, applicant / accused has approached this Court.

5. Learned advocate for the applicant / accused mainly contended that there is dispute between the parties over matrimonial affairs. That co‑accused Dildar, Gul Mir and Abdullah alias Nandho have already been granted pre-arrest bail by the trial Court and the applicant / accused is no more required for investigation. In support of his contentions, he has relied upon the case reported as Ali Athar v. The State and another (2013 P. Cr. L.J 487).

6. Syed Sardar Ali Shah, DPG argued that applicant / accused had caused soti blow at the nose of the injured Muhammad Bux. He further submitted that no mala fide on the part of police or the complainant has been shown. It is submitted that alleged offence falls within the prohibitory clause of 497, Cr.P.C. It is further argued that case of co-accused was distinguishable, who have been granted pre-arrest bail by trial Court. Learned DPG opposed the application for pre-arrest bail to accused.

7. Complainant is present in the Court and submitted that injured is still admitted in the hospital at Rahimyar Khan.

8. I have carefully heard the learned counsel for the parties and perused the contents of the FIR and 161, Cr.P.C statements of the PWs, and medical certificate issued by Medical Officer, Taluka Hospital, Daharki dated 17.08.2019. Medical Officer has declared the injury attributed to the applicant / accused as shajjah-i-hashimah.

9. Grant of pre-arrest bail is an extra ordinary remedy in criminal jurisdiction; it is diversion of usual course of law, arrest in cognizable cases; a protection to the innocent being hounded on trump up charges through abuse of process of law, therefore a petitioner seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide; it is not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation, as held by Hon'ble Supreme Court in the case of Rana Abdul Khaliq v. The State and others (2019 SCMR 1129). Relevant portion is reproduced as under:

“2. Grant of pre-arrest bail is an extra ordinary remedy in criminal jurisdiction; it is diversion of usual course of law, arrest in cognizable cases; a protection to the innocent being hounded on trump up charges through abuse of process of law, therefore a petitioner seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide; it is not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation. Ever since the advent of Hidayat Ullah Khan’s case (PLD 1949 Lahore 21), the principles of judicial protection are being faithfully adhered to till date, therefore, grant of pre-arrest bail essentially requires considerations of mala fide, ulterior motive or abuse of process of law, situations wherein Court must not hesitate to rescue innocent citizens; these considerations are conspicuously missing in the present case. The case referred to by the learned Judge-in-Chamber unambiguously re-affirms above judicial doctrine and thus reliance being most inapt is unfortunate to say the least.”

10. 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 mala fide 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 mala fide and ulterior motive. Bail before arrest cannot be granted unless person seeking it satisfies conditions specified under Section 497(2), 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.

11. For the above stated reasons, as there is no mala fide or ulterior motive on the part of the Investigating Agency and complainant; injury has also been specifically attributed to the applicant / accused and it has been declared as shajjah-i-hashimah; injured is still admitted in the hospital. Contention of learned counsel for applicant / accused that there is matrimonial dispute between the parties, requires deeper appreciation of evidence, which is not permissible at bail state. Case of co-accused to whom pre-arrest bail has been granted is distinguishable from the case of applicant / accused as highlighted by the learned Additional Sessions Judge vide his order dated 04.09.2019. No case for grant of pre-arrest bail to applicant / accused is made out.

12. Bail application is dismissed. Interim pre-arrest bail already granted to the applicant / accused vide order dated 06.09.2019 is hereby recalled. Observations made herein above are tentative in nature; trial Court shall not be influenced while deciding the case on merits.

J U D G E

Abdul Basit