ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

 

Cr.B.A.No.S-  831  of 2010

 

DATE                                     ORDER WITH SIGNATURE OF JUDGE

 

            1. For orders on MA 4035/10.

            2. For orders on office objection.

            3. For orders on MA 4007/10.

            4. For hearing.

 

24.11.2010

 

Mrs. Razia Ali Zaman Khan, Advocate a/w applicants.

Syed Meeral Shah D.P.G for the State waives notice.

Complainant Azeem Khan present in person.

                        =

1.         Granted.

2.         Over ruled.

3.         Granted subject to all just exceptions.

4.         Through this application, applicants seek pre-arrest bail in Crime No.22/2010 of P.S Tando Ghulam Hyder for offence U/s 302, 324, 201, 114, 34 PPC.

Applicants were granted interim pre-arrest bail by VIth Additional Sessions Judge, Hyderabad vide order dated 26.10.2010 but on 4th November 2010 the trial Court did not confirm their interim pre-arrest bail and dismissed their application.

The allegation against the applicants is that on 15.4.2010, applicant No.1 Mst. Madina alongwith her son applicant No.2 Habibullah confined Mst. Khairun Nisa alias Nisha, the wife of Habibullah in bath room, sprinkled the petrol upon her and set her on fire. She raised cries which attracted the people of village. Later on she came out of bath room and become unconscious. Subsequently, she succumbed to her injuries in the hospital.

It is inter alia contended that applicants are innocent and they have been falsely implicated by complainant; none amongst the villagers has been shown as a witness; there are in consistent statements of deceased which create doubt about the prosecution version; mashirs of wardat belong to Kotri and related to the complainant.

Conversely, Syed Meeral Shah, learned D.P.G for the State waives notice of this application and vehemently opposed the bail plea on the ground that applicants have been implicated in the statements of deceased Mst. Khairun Nisa alias Nisha. No malafide is alleged therefore, they do not deserve the extra ordinary concession of pre-arrest bail.

Heard learned counsel for the parties and perused the record.

Admittedly Mst. Khairun Nisa alias Nisha was wife of applicant Habibullah. After fhe aforesaid unhappy episode, deceased was admitted at Burn Centre Civil Hospital, Karachi. On 16.4.2010 her statement was recorded before Dr. Qarar Ahmed Abbasi, Medicolegal Officer, Civil Hospital, Karachi in which she has categorically stated that on 15.4.2010 she was confined in a bath room by applicants and after showering petrol upon her, she was set on fire by applicants. Again on 22.4.2010 his 161 Cr.P.C statement was recorded in which also she implicated the present applicants. However, her further statement was recorded on 23.4.2010 in which too she has reiterated the same facts. The motive behind this occurrence as disclosed by the deceased in her above statements is that applicants were compelling her to transfer her house in their favour but she refused to do so. Upon perusal of mashirnama of wardat, it appears that police recovered a bottle which contained some petrol as well as two match sticks which are allegedly used in the commission of offence. As far as plea of false implication is concerned, admittedly the FIR has been lodged on the basis of statements of the deceased whereby she has leveled specific allegations against the applicants. No malafide has been alleged. As far as the plea that none amongst the villagers has been shown as witness is concerned, same is untenable as admittedly the complainant did not claim to be eye witness of the occurrence and the entire prosecution case is based upon the statements of deceased. Admittedly her first statement was recorded before Dr. Qarar Ahmed Abbasi, Medicolegal Officer, Civil Hospital, Karachi when she regained her senses and even in her subsequent statements, she has fully implicated the applicants. As far as plea of pre-arrest bail is concerned, same is an extra ordinary concession which cannot be extended in each and every case. It is held by their lordships in the case of  Rana Muhammad Arshad Vs. Muhammad Rafique and another (PLD 2009 Supreme Court 427) that grant of pre-arrest bail is an extra ordinary relief to be granted only in extra ordinary jurisdiction to protect innocent persons against victimization through abuse of law for ulterior motives. It is further held by their lordships that bail before arrest cannot be granted unless the person seeking it satisfied the conditions specified in sub-section 2 of Section 497 Cr.P.C i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there are, infact, sufficient grounds warranting further inquiry into his guilt. Not only this but in addition he must show that his arrest was being sought for ulterior motives, particularly on the part of police to cause irreparable humiliation to him and disgrace and dishonour to him. The names of applicants transpire in the FIR, deceased Mst. Khairun Nisa alias Nisha has also fully implicated them  in her statements and from the house of the applicants articles allegedly used in the commission of offence have been recovered. 

Following the dicta laid down by their lordships in the aforesaid case and keeping in view the material available on record, I am of the considered view that applicants do not observe the concession of anticipatory bail. Consequently, their bail application being devoid of merits is hereby dismissed.           

 

 

                                                                                                JUDGE

 

                                                                                   

 

Tufail