IN THE HIGH COURT OF SINDH, SUKKUR BENCH AT SUKKUR

 

Criminal Bail Application No. 381/2021

 

 

Applicants:                                        Bashir Ahmed, Rahib and Shahmir through Mr. Yar Muhammad Jalbani, Advocate.

Complainant:                                    Rab Bux through, Mr. Sohail Ahmed Khoso,  advocate.

State:                                                 Through Syed Sardar Ali Shah, DPG

Date of hearing:                                 23.08.2021.

Date of short order:                           23 .08.2021.

Date of reasons:                                 06.09.2021.

 

O R D E R

 

Zulfiqar Ali Sangi, J:-                     Through instant bail application, applicants seek their admission on pre-arrest bail in case crime No.51/2020, under sections 302/201/34 PPC, registered at P.S. Jarwar, District Ghotki. The applicants have preferred their bail plea, being criminal bail application No. 144/2021, before learned 3rd Additional Sessions Judge, Mirpur Mathelo, which was declined vide order dated 17.06.2021.

 

2.       Succinct facts of the prosecution case are that the complainant got registered FIR on 23.10.2020 stating therein that his brother left home on 23.05.2020 for lands and Jahanpur Sharif but he did not return back. On 25.05.2020, complainant party came to know that police of P.S. Jarwar had recovered one dead body from Pathan Bridge, Kander Minor but due to non-identification, same was buried in Lal Shah Graveyard, Mirpur Mathelo. They rushed to P.S. where they saw photographs of deceased and identified as their brother Nabi Bux. Thereafter, complainant filed criminal miscellaneous application for exhumation of dead body on which a medical board was constituted, who reported that deceased received injuries on his head, nose and teeth, hence this FIR was registered against unknown persons.

 

3.       Learned counsel for the applicants, at the very outset, submits that applicants are quite innocent and have been falsely implicated in this case by the complainant party due to landed enmity; that the FIR was lodged with the delay of five months, which has not been properly explained by the prosecution; that such FIR was registered against unknown persons; that there is no eye witness of the incident; that the names of present applicant/accused had been disclosed in further statement of complainant, which was recorded with a delay of about more than one year wherein complainant has shown himself as eye witness; that earlier complainant party had kidnapped the brother of the applicants/accused and in such respect FIR bearing crime No.66/2021 was registered against complainant party and thereafter kidnappee was recovered by the police after an encounter and then FIR bearing crime No.67/2021, under sections 324, 353 PPC was also registered at P.S. Mirpur Mathelo. His next submission is that the circumstances prevailed shows that the complainant has implicated the accused with his malafide intention and ulterior motives, which is prime ingredient of grant of pre-arrest bail, therefore, prayed for confirmation of their bail.

 

4.       Conversely, learned APG has vehemently oppose the bail application; however he concedes that FIR was registered against unknown persons, which was disposed of under ‘A’ class and the present applicants were nominated as an accused on the further statement of complainant, which was recorded with the delay of more than one year and one month. In the last, he submits that they do not deserve extraordinary relief in shape of pre-arrest bail.

 

5.                Learned counsel for the complainant submitted that applicants were involved in the case after the investigation by the police; that no malafides on the part of complainant or the investigation officer has been pointed out by the applicants; that a young boy of age about 37/38 was murdered; that complainant and the witnesses fully supported the case in their further statements; that recording of further statement with delay is no ground for grant of bail. Lastly, he prayed that application of the applicants may be dismissed.

 

6.                 I have given anxious consideration to the arguments advanced by the learned counsel for the parties and have gone through the material available before the court with their able assistance.

 

7.                 It is observed that the applicants filed their first pre-arrest bail application which was transferred to 3rd Additional Session Judge, Mirpur Mathelo, (Mr. Abdul Sattar Soomro), neither the interim bail was granted to them nor the same was decided finally on the date of hearing, after hearing the complainant and counsel for the applicants only notices were issued to the prosecution vide order dated: 11-06-2021, in bail application No. 141 of 2021, and was adjourn for 14-06-2021. The applicants due to the fear of their arrest approached this court for protective bail and the same was granted on 14-06-2021, in bail application No. 363 of 2021, however,  learned 3rd Additional Session Judge dismissed the bail application for non-prosecution vide order dated: 14-06-2021. After the protective bail applicants again filed application for pre-arrest bail which was again transferred to 3rd Additional Session Judge Mirpur Mathelo, neither the interim bail was granted to them nor the same was decided finally on the date of hearing, after hearing the complainant and counsel for the applicants once again only notices were issued to the prosecution vide order dated: 15-06-2021, in bail application No. 144 of 2021, and was adjourn for 17-06-2021 and thereafter on 17-06-2021 after hearing the parties bail application was dismissed.

 

8.                In the above circumstances it is settled by now that applications for bail before arrest should be decided one way or the other when they are listed for hearing before a court of law or of this is not possible then interim bail should be given, otherwise the very purpose of such an application would be defeated. If the practice of notices to the prosecution without giving interim pre-arrest is not depreciated then many deserving applicants might be subjected to arrests and harassment. In order to avoid such a result perhaps it would be more in accord with the principles of administration of criminal justice that each application should be scrutinized consider its merits and if the learned Sessions Judge/Addition Session Judge is not satisfied he might reject it instantly so that the aggrieved person could seek his remedy in the superior courts without any let hindrance.

 

9.                It is also observed from the order rejecting bail that no case law was cited on behalf of the prosecution, however, learned 3rd Additional Session Judge quoted the judgments of Honourable Apex Courts himself, court can do so in the interest of justice only to do the justice with innocent persons but at the same time the court is required consciously to see as to whether the facts of the quoted judgments are relevant to the case which is going to be decided, learned 3rd Additional Session Judge Mirpur Mathelo ignored these things and while rejecting the pre-arrest bail had relied upon the cases reported as 2005 P.Cr.L.J 768, 2002 SCMR 442,  the facts of these cases are different from the case in hand, 1990 SCMR 346, PLD 2007 (Karachi) 27, 2007 Pak. Cr. L.J 1657 which related to the post arrest bail and the facts are very much different from the case in hand.  1994 SCMR 1543 related to the appeal of narcotics and having no nexus with bail matters. PLJ 1997 SC ( AJ@K) page 46 also related to the appeal having no nexus with bail application. PLD 2008 Karachi 170 in such case applicant was nominated in the FIR with specific role and in the present case applicants were not nominated in FIR nor any role was assigned against any person, FIR was delayed for about 5 months and after investigation  case was disposed of by the police under “A” class, when the dispute start in between the applicants and the complainant then after the 13 month applicants were named in supplementary statement of the complainant, therefore, the above case law relied upon by the court bellow are different from the present case and were not applicable. Learned judge has also ignored the settled principal of law by the Apex Courts in respect of distinguished in pre-arrest bail and the post arrest bail as has been held by the Honourable Supreme Court in unreported case of Syed Ali Raza& others v. Federation of Pakistan through Secretary M/O law, Islamabad & others (Civil Petition No. 194,298 &304 of 2018) and in the case of Muhammad Hussain v. The State (1982 SCMR 227).

 

10.              The concept of pre-arrest bail is exceptional; it has to be exercised sparingly. The purpose behind is to save innocent persons from false allegations, trumped up charges and malicious prosecution at the end of complainant party. Honourable Supreme Court in case of "Meeran Bux v. The State and another" (PLD 1989 SC 347), held that the scope of the pre-arrest bail has been widened and as such while granting pre-arrest bail even the merits of the case can be touched upon. Further the Honourable Supreme Court in case of Syed Mnhammad Firdaus and others V, The State (2005 SCMR 784), has held as under:-

27.  Be that as it may, now it would be imperative to examine as to whether for grant of bail before arrest to the petitioners, principle laid down in the case of Sadiq Ali v. The State PLD 1966 SC 589, would be attracted or not, according to which "exercise of this power should, however, be confined to cases in which not only a good, prima facie, ground is made out for grant of bail in respect of and offence alleged but also it should be shown that if the petitioners were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motives and with the object of injuring the petitioner, or that the petitioner would in such an eventually suffer an irreparable harm". This principle has been reiterated in the case of Meeran Bux v. The State PLD 1989 SC 347. In this behalf, it may be noted that in this case bail before arrest granted to an accused by the Sessions Judge was cancelled by the High Court in suo motu revisional jurisdiction on the premises that pre-requisite for bail before arrest i.e. ulterior motive was not satisfactorily proved but this Court restored        the order of Sessions Judge, taking into consideration that the accused remained on bail for  a  period  of  more   than   one   year before cancellation of his bail and he did not abuse the concession in any manner. Reference in this behalf was also made to the case of Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82. Similarly in the case of Jamal-ud-Din v. The State 1985 SCMR 1949, this Court had laid down that "arrest for ulterior motives such as humiliation and unjustified harassment makes it valid consideration for grant of pre-arrest bail. This very principle has been reiterated in the case of Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97.

Thus, answer to above query would be that in view of the facts and circumstances of the case, these principles are very much attracted in the instant case because in absence of evidence on record that the conduct of the petitioners was marred with criminal intention, they are entitled for grant of bail before arrest.

 

11.              Admittedly the applicants were not nominated in the FIR though the same was registered with the delay of 05 months. The complainant in his FIR stated that his brother went to the lands where from he had to go Jahanpur Shareef but did not return, no complaint was made by the complainant about missing of his brother. As per FIR, complainant came to know about the unknown dead body recovered by the police and buried on 25-05-2020, and approached police station where he identified the dead body as of his brother through photographs, but he did not lodge any report nor he made any complaint to the police about the accused persons that who committed the murder. From 25-05-2020 to 23-10-2020 when FIR was registered there was no clue about the accused persons with the complainant or the police.

 

12.              It is observed that before the FIR complainant filed an application under section 176 (2) Cr. P.C before the 1st Civil Judge and Judicial Magistrate, Mirpur Mathelo for exhumation of dead body of deceased Nabi Bux Bozdar for postmortem on 28-05-2020, wherein he mentioned almost the same story as mentioned in the FIR registered on 23-10-2020. The complainant not nominated any of the accused in the application, in the FIR nor any of the witness stated a single word against any of the accused. It was an unseen incident. Police after the investigation disposed of the case under “A” class but the complainant party was silent, they did not prefer any application before any forum against the investigation officer who disposed of the case under “A” class.

 

13.              On 22-04-2021, after about one year of the present incident and after 06 months from the present FIR, the father of applicant Bashir Ahmed namely Ali Sher lodged the FIR No. 66 of 2021, at police station Jarwar for offences under section 364, 337-Hii, 147, 148 and 149 PPC, against the present complainant party and during the investigation abducted person in the FIR was recovered by the police after an encounter with the complainant party of the present case and the police lodged other FIRs bearing crime No. 67 of 2021 under section 324, 353, 368, 148 and 149 PPC and crime No. 68 of 2021 under section 25 of the Sindh Arms Act, 2013 at the police station Mirpur Mathelo. The applicants were involved by the complainant through his further statement recorded on 09-06-2021 after about one year of the incident and 8 months from the registration of FIR so also after two month from the FIR lodged by the applicants party against the complainant party which creates very serious doubt about the involvement of the applicants in the present case.

 

14.              It is settled by now that whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail rather than in the jail during the trial. It is further observed here that while deciding bail applications an elaborate sifting of evidence cannot be made but only a tentative assessment is permissible and a cursory glance of the record shows that all the applicants have made out their case for confirmation of pre-arrest bail. Under these circumstances the interim pre-arrest bail granted to all the applicants earlier by this court vide order dated: 21-06-2021 is hereby confirmed on the same terms and conditions.

 

15.              Needless to mention here that the observations made hereinabove are tentative in nature and may not prejudice the case of either side at trial before the trial court.

 

16.              The above are the reasons of my short order dated: 23-08-2021.

         

JUDGE