ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

 

Cr. Bail Appln. No.S-89   of  2022

(Mukhtiar Ali Gopang & others v. The State)

 

1st Cr. Bail Appln. No.S-90 of  2022

(Bashir Ahmed Lakhair& others v. The State)

 

 

Mr. Athar Abbas Solangi, advocate for applicants.

Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.

 

 

Date of hearing

& Order                      :  21.07.2022.

 

O R D E R

ADNAN-UL-KARIM MEMON, J. Both the captioned bail applications have been filed in the same FIR, as such, the same are being disposed of by this common order.

2.         Applicants Mukhtiar Ali Gopang, Mashooq Ali Meeno, Shahzado Oad, Nisar Ahmed Jatoi (Cr. Bail Appln. No.S-89/2022) and applicants Bashir Ahmed Lakhair, Mohammad Yousif Abro and Mumtaz Ahmed Memon (in Cr. Bail Appln.               No.S-90/2022) have been indicted in Crime No.21/2022 registered at Police Station Mehar, District Dadu. Their request for grant of pre-arrest bail was turned down by the learned Additional Sessions Judge-I, Dadu vide separate orders dated 23.02.2022; hence, they have approached this Court with the same plea.

3.         Mr. Athar Abbas Solangi, learned Counsel representing the applicants, contended that the applicants are innocent and have been falsely implicated in this case due to professional jealousy and departmental intrigues; that there is a delay of 27/28 days in the lodgment of FIR withoutany plausible explanation; that except Head Constable Ghulam Mustafa Chandio, there was/is no eye-witness of the alleged offence; that the case against the applicants calls for further inquiry as contemplated under sub-section (2) to Section 497, Cr.P.C. He next contended that the basic principle in bail matters in such circumstances or such conduct of the accused person that may bring his case under the exceptions to the rule of granting bail. They include the likelihood of (a) his absconding to escape trial;  (b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or (c) his repeating the offense while keeping in view his previous criminal record or the desperate manner in which he, prima facie, acted in the commission of offense alleged, hence, the applicants are entitled to confirmation of pre-arrest bail already granted to them by this Court vide order dated 28.2.2022.

4.         Learned DPG opposed the bail applications and contended that the applicants are nominated in the FIR and specific allegation of arresting and subsequently releasing an accused, who was/is proclaimed offender in a murder case, thus they are not entitled to the concession of pre-arrest bail. He further contended that the grant of bail before the arrest is an extraordinary relief to be granted only in the extraordinary situation to protect innocent persons against victimization through abuse of the law for ulterior motives which is not the case at hand; he further submitted that pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail. He prayed for the dismissal of the instant pre-arrest bail applications.

5.         I have heard learned counsel for the applicants, learned D.P.G, and perused the material available on record.

6.         According to the case of the prosecution, on 04.01.2022, at 2.30 p.m., in front of Taluka Hospital, Mehar, the applicants Mumtaz Ahmed Memon, Mukhtiar Ali Gopang, Mashooq Ali Meeno, Shahzado Oad, and Nisar Ahmed, being police officials/constables, apprehended an absconding accused along with the car, took him to some unknown place and this incident was allegedly witnessed by a head constable deployed at the above hospital, who conveyed it to Muharrar of the police station, who in turn forwarded such information to complainant SIP Zahid Hussain Khoso of P.S Mehar.  The complainant visited the place of the incident, collected the necessary information, and then reported the matter to his high-ups.  On 05.01.2022 DIGP Hyderabad took notice of the incident in the media reports and deputed Mr. Aneel Hyder Memon, S.P. Headquarters, Hyderabad, as inquiry officer, who after conducting inquiry furnished a report to the effect that the accused persons had apprehended Abbas Siyal being proclaimed offender of murder case crime No.12/2014 of Police Station G.O.R Colony, Hyderabad, registered under Sections 302, 114, 34, PPC and had released him in collusion with and on the abetment of applicants Inspector Mohammad Yousif Abro and ASI Bashir Ahmed Lakhair, who also concealed the offense/incident.  Based on such a report and under the orders of DIGP, Hyderabad, the FIR of this case was registered.        

7.          The learned trial court, while rejecting pre-arrest bail of the applicants has based its finding on the analogy that sufficient material was/is available on record connecting the applicants with the commission of the alleged offense, as they had allegedly misused their powers and authority and released a proclaimed offender after arresting him. However, the learned trial observed that sections 212, 217, 219, 221, 109, 337-H (ii), and 34 PPC applied in FIR are bailable.If this is the position of the case, in my tentative view, to attract section 212 PPC, there should be concrete evidence against the accused to harbor or concealing a proclaimed offender, to screen him from legal punishment, and in the present case, one police Head Constable has been shown to have observed such state of affairs; however, the question arises whether, the alleged eye witness of the incident could well recognize the alleged proclaimed offender, which narration could be thrashed out in evidence; whereas section 217, 219, 221 PPC could only be attracted when a public servant, intentionally omits to apprehend such proclaimed offender declared by the competent court of law; and/or he hasdisobeyed the law; and corruptly or maliciously makes, any report, which he knows to be contrary to law, which factum needs to be looked into by the learned trial Court, after recording of evidence. Besides the F.I.R has been lodged after about one month from the date of the alleged offense based ona print Media report.All points discussed supra need evidence which could only be possible if the alleged eyewitness is examined by the learned trial court.In this case, applicants have pleaded their imminent arrest, in the subject F.I.R, at the hands of the Police, to cause humiliation. If this is the position of the case, prima facie, such exceptions have not been pointed out by the Prosecution to deny the extraordinary relief as provided under Section 498-A Cr.P.C., thus the benefit of extraordinary relief could be extended to the applicants, in such circumstances of the case, as they pointed out malice on the part of the prosecution.

8.          From the facts and circumstances as stated above, and from the tentative assessment of the material available on record, the applicants have made out a case for grant of confirmation of pre-arrest bail already granted to the applicants as provided under section 498 Cr.P.C., therefore, the interim pre-arrest bail already granted to the applicants named above vide order dated 28.2.2022 is confirmed on same terms and conditions.

9.         The observations made in this order are tentative and the same would have no bearing on the outcome of the trial of the case. It is made clear that in case, if applicants/accused during proceedings before the trial Court, misuse the concession of bail, then the trial Court would be competent to cancel their bail without making any reference to this Court.The learned trial Court is directed to record evidence of eye-witness within one month positively.

10.        Bail applications stand disposed of in the above terms.

JUDGE