ORDER   SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Crl.Bail Appln.No.S-49 of 2021.

Crl.Bail Appln.No.S-54 of 2021.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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For hearing of bail application(s).

09.12.2021

                        Mr. Sher Ali Chandio, Advocate for applicants Javed Iqbal,

Zahid Hussain and Muhammad Younis.

Mr. Athar Abbas Solangi, Advocate for applicants Ubed-ur-Rehman,

Iftikhar Ahmed and Tarique Hussain.

Mr. Sajid Hussain Mahessar, Advocate for legal heirs of

deceased Abdul Fattah.

                        Mr. Ali Anwar Kandhro, Addl.Prosecutor General for the State.

                        =  *  = * = * = * = * =

IRSHAD ALI SHAH - J;- It is case of the prosecution that Abdul Fattah and Shahzado were killed after an armed encounter with the applicants and others being member of police party, for that the FIR was lodged on behalf of the State. On investigation, such FIR was recommended by the Investigating Officer to be disposed of under “A” class; such recommendation was not accepted by learned 2^nd Civil Judge & Judicial Magistrate, Mehar, who directed for                 re-investigation of the case vide order dated 02.10.2018. In the meanwhile,    one Saifullah claiming to be son of deceased Abdul Fattah by way of making an application under section 22-A & B Cr.PC sought for direction against the police to record his independent FIR for the above said incident. It was dismissed by learned 2^nd Additional Sessions Judge/Ex-Officio Justice of Peace, Mehar, vide order dated 03.10.2018, it was impugned by Saifullah before this Court by preferring a Criminal Misc.Application, it was disposed of by this Court directing the S.S.P Complaint Cell to call the parties and after hearing them decide the issue in writing within three days vide order dated 21.03.2019; it was impugned by Saifullah before the Honourable Supreme Court of Pakistan by filing a Criminal Petition No.30-K of 2019; it was disposed of by consent by Honourable Supreme Court of Pakistan vide order dated 28.04.2020, directing the D.I.G Hyderabad to ensure just and fair investigation of the subject FIR (Crime No.46/2016 of P.S Faridabad). In pursuant to such direction, the investigation of the case was conducted afresh; the statement of Saifullah was recorded, who in his statement alleged that the deceased have been killed by the applicants and others in fake police encounter. After due investigation, such FIR was again recommended by the police to be disposed of under “A” class but learned 2^nd Civil Judge & Judicial Magistrate, Mehar, did not agree with the recommendation of the police, consequently he took cognizance of the incident and directed issuance of bailable warrants against the applicants and others in sum of Rs.50,000/- each. On issuance of bailable warrants against the applicants and others, they sought for pre-arrest bail, which was declined to the applicants only by learned 1^st Additional Sessions Judge, Mehar, and they now have sought for the same from this Court by making two separate applications u/s.498-A Cr.PC.

                        It is contended by learned counsel for the applicants that the applicants are innocent and the very FIR on successive investigation has been recommended by the Investigating Officer to be disposed of under “A” class and the applicants were prepared to furnish the surety before the Courts below in terms of order dated 01.12.2020, passed by learned trial Magistrate, which was denied. By contending so, they sought for grant of pre-arrest bail for the applicants, as they are apprehending their unjustified arrest and humiliation.  

                        Learned Additional Prosecutor General for the State has recorded no objection to grant of pre-arrest bail to the applicants, while learned counsel for legal heirs of deceased Abdul Fattah has sought for dismissal of the instant bail applications by contending that they have committed the heinous offence under the garb of police encounter.

                        I have considered the above arguments and perused the record.

                        As per FIR, both the deceased have lost their lives as a result of an armed encounter with the police party; such FIR on having been registered on behalf of the State on successive investigation was recommended by the Investigating Officer to be disposed of under “A” class; such recommendation was not accepted by learned trial Magistrate, who took cognizance of the incident/offence and consequently directed issuance of bailable warrants against the applicants and others in sum of Rs.50,000/- each. Nothing has been brought on the record by either of the party which may suggest that the order of issuance of bailable warrants against the applicants and others was converted into non bailable warrants by any of the Court below at any moment, which could have justified denial of bail to them. Be that as it may, co-accused Ahmed Ali and 16 others have already been admitted to bail by learned trial Court. The applicants have joined the trial and have not misused the concession of bail. In these circumstances, it would be unjustified to deny the concession of pre-arrest bail to the applicants, which obviously is made out in their favour on point of malafide.

                        In view of above, the interim pre-arrest bail already granted to the applicants is confirmed on same terms and conditions.

                        The instant criminal bail applications are disposed of accordingly.

 J U D G E