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.