IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Present;

Mr. Justice Amjad Ali Sahito

Cr. Bail Appln. No. S – 483 of 2021

Applicant : Asif Ali S/o Himath Ali Thebo

M/s Syed Imtiaz Ali Shah and Arif Ali Lashari, Advocates

Respondent : The State

Through Mr. Shafi Muhammad Mahar, DPG for the State

Dated of hearing: 23.08.2021

Date of order : 23.08.2021

O R D E R

AMJAD ALI SAHITO, J – Through this bail application, the applicant/accused seeks pre-arrest bail in Crime No.74 of 2021 registered at Police Station Kotdiji, District Khairpur for an offence punishable under Section 302, 311, 201 and 34 PPC. The bail plea of the applicant/accused has been declined by learned Additional Sessions Judge-I/(MCTC), Khairpur vide order dated 29.07.2021.

2. The details and particulars of the FIR are already available in the bail application and FIR, therefore same could be gathered from the copy of FIR attached with such application, hence need not to reproduce the same hereunder.

3. It is contended by learned counsel that the applicant/accused is innocent and has falsely been implicated in this case by the complainant with malafide intention and ulterior motives; that there is no eye-witness of the alleged incident; that the complainant being police officer just to show his efficiency has lodged a false FIR, whereas, deceased Mst. Perveza had committed suicide; that the police has not recorded the statement of father of the deceased, hence in the circumstances the false implication of the applicant/accused cannot be ruled-out. He lastly prayed for grant of pre-arrest bail to the applicant/accused.

4. On the other hand, learned DPG for the State prayed for dismissal of instant bail application by contending that the name of the applicant/accused is specifically mentioned in the FIR with the role that he along with his brother Nadeem and an unknown person after declaring his sister Mst. Pervaiza as ‘Kari’ with one Sadam causing injuries, strangulated and murdered her and when they were trying to bury her dead body in the graveyard, the complainant / police party on receiving such information reached at the graveyard and the accused on seeing the police party escaped away; the offence with which the applicant/accused has been charged entails capital punishment, therefore, he cannot be absolved from the commission of the offence.

5. I have heard the learned counsel for the applicant/accused, learned DPG for the State and perused the record. As per the FIR, the complainant ASI Roshan Ali Sial during patrolling in the jurisdiction received information that the applicant/accused along with his brother Nadeem and one unknown accused after declaring his sister Mst. Pervaiza as ‘Kari’ with one Sadam has caused injuries, strangulated her, resultantly she died and they are going to bury her dead body in the graveyard, hence the police party rushed to the pointed place at graveyard and saw that the present applicant/accused along with co-accused Nadeem and one unknown person were present there, who on seeing the police escaped away. The offence with which the applicant/accused is charged entails capital punishment. Prima facie sufficient material is available on record to connect the applicant/accused with commission of the alleged offence.

6. The concession of pre-arrest bail cannot be allowed to an accused person unless the Court feels satisfied with the seriousness of the accused person’s assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local police but not a word about this crucial aspect of the matter is found as no mala fide is made on the part of the complainant to believe that the applicant/accused has been implicated in this case falsely. In this context, the reliance is placed to the case of ‘Rana Abdul Khaliq v. The STATE and others’ [2019 SCMR 1129]. Further, in addition to the above, I would like to mention that grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is a diversion of the usual course of law, arrest in cognizable cases; protection to the innocent being hounded on trump up charges through abuse of process of law, therefore, an applicant 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 the investigation.

7. In view of the above, the applicant/accused has failed to bring his case for further inquiry as envisaged under subsection (2) of Section 497, Cr.P.C. Consequently, the interim pre-arrest bail granted by this Court to the applicant/accused vide order dated 03.08.2021 is hereby recalled and the bail application is dismissed.

8. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial Court while deciding the case of the applicant on merits.

Judge

ARBROHI