ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

   Cr.B.A.No. S -  111  of 2021.

           

1.For orders on MA 936/2021.

2.For orders on MA 937/2021.

3.For hearing of bail application.

 

Date of Hearing  17h  February, 2021.

            Mr.Muhammad Asad Ashfaq Advocate alongwith applicant.

                                               

1 to 3.  Through this application,    Applicant Mubeen Ahmed Jatoi seeks Bail Before Arrest in respect of Crime No. 03/2021 for offence u/s420, 406, 467, 468, 470, 471, 34, PPC R/W Section 5 (2) Act-II of 1947, registered at Police Station, ACE, Sukkur.

            To be very brief the F.I.R has been registered under the directions of High Court. The Division Bench order mentions the name of the applicant therefore the prosecution besides the material available with them, was under an obligation to nominate the applicant in the F.I.R. On query of the Court learned counsel for the applicant has informed that the order passed by the Division Bench, has not been challenged before the Honourable Supreme Court and instead an application u/s 12(2) CPC had been preferred. However, neither the order has been suspended nor modified. Therefore in my humble view in the present case malafide cannot be attributed to the complainant. Learned trial Court had granted interim bail before arrest to the applicant but declined to confirm the bail on 16.01.2021 with the following observations:-

“9.   The scope of pre-arrest bail is limited only to those cases which are based on mala fide in this case so far no any substantial material showing malafide on the part of complainant/investigation officer has been brought on record. It has been held by Honourable Supreme Court of Pakistan in the case of Mst.Qudran Bibi reported as 2003 SCMR 68) that pre-arrest bail not to be granted when no  mala fides had been, prima, facie, established against the complainant for false involvement of accused in the commission of offence; in this case, as discussed in the above part of this paragraph, no any substantial material showing malafide on part of complainant/investigation officer has been brought on record, as such, the basic ingredient of pre-arrest bail is not available”.

 

            Learned counsel for the applicant has been arguing before the Single Bench that the order passed by the Division Bench suffers from severe illegalities including that the applicant was not before the Division Bench at the time of passing of the said order. His arguments could be valid before the Division Bench seized of his application u/s 12(2) CPC but not before the Single Bench hearing a case of applicant for his bail before arrest. Be that as it may,  he has not been able to show any malafide on the part of the prosecution nor argued  that the above quoted observation about bail before arrest could be ignored by this Court without cogent ground. In fact his remedy was an application for suspension of order for registration of F.I.R by the Division Bench alongwith his application under Section 12(2) CPC. Without getting the order incorporated in the F.I.R  suspended by the Division Bench, a single bench cannot modify if to  attribute a  malafide in registration of FIR on the  complainant.

            In view of above, no case for bail before arrest is made out. Application is dismissed alongwith listed applications.

                                                                                                               JUDGE

 

 

 

Akber.