ORDER SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Crl. Bail Appln. No.552 of 2011
|
DATE |
ORDER WITH SIGNATURE OF JUDGE |
13.3.2013
Mr. Ali Nawaz Ghanghro, advocate for the applicants.
Mr. Yasir Arafat Seelro, advocate for complainant.
Mr. Abdul Rasheed Soomro, State counsel.
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Muhammad Shafi Siddiqui. J- Learned counsel for the applicants has moved this bail application in respect of offence under section 302, 34, PPC registered as FIR under Crime No.17/2011 at Police Station Qubo Saeed Khan. It is the case of the applicants that they have not been nominated in FIR registered on 07.3.2011 and that subsequently, on 19.7.2011 i.e. after 04 months and 12 days in terms of further statements of complainant and witnesses, the applicants have been implicated. It is contended by the learned counsel for the applicants that the involvement of the applicants after 04 months and 12 days of registration of FIR is itself sufficient to establish the malafide on the part of the complainant and it need no further explanation. He submits that no specific role as far as FIR is concerned is ascribed and as such they are entitled for the interim bail before arrest.
2. On the other hand, learned counsel for the complainant submits that the principles as far as bail before arrest are concerned are totally different as to those which are for bail after arrest. He submits that prime consideration in the pre-arrest bail is ‘malafide’ on the part of complainant which has to be proved beyond doubt by the applicants. Learned counsel has also relied upon the following case law in support of his arguments:-
(i) Muhammad Arshad v. Muhammad Rafique PLD 2009 SC 427
(ii) Muhammad Sidiq v. Muhammad Nisar 2003 P.Cr.L.J 20
(iii) Qudrat Bibi v. Muhammad Iqbal 2003 SCMR 68
(iv) PLD 2008 Karachi 170
(v) Sher Muhammad v. State 2008 SCMR 1451
(vi) Saghir Ahmed v. Zulfiqar Ahmed 2005 P.Cr.L.J 1284
In terms of above referred judgment it is alleged that bail before arrest can be granted in extraordinary circumstances where prima facie malafides are apparent on the part of prosecution or accused appeared to have been falsely implicated in the case. Learned counsel has relied upon the case of Saghir Ahmed (supra) in terms whereof the opinion of the police officer was not binding upon the Court, as earlier in terms of the report of I.O, the case was disposed of under ‘A’ class.
3. In the case of Muhammad Arshad (supra) it was held as under:-
“15. It has also been repeatedly held by the Superior Courts (reference be made to Zia-ul-Hassan’s case supra) that no Court would have any power to grant pre-arrest bail unless all the conditions specified for allowing bail before arrest especially the condition regarding Mala fides were proved. No such finding exists in the said bail granting orders. On the contrary, while talking about the disappearance of Tariq accused for more than two years after his nomination as an accused, the Hon. Judge found that the said accused was in no condition to escape arrest or to abscond and it was the police which had not caused his arrest for such a long period of time which observation obviously established absence of ulterior motives on the part of police.”
In the case of Qurdrat Bibi (supra) it was held as under:-
“8. A perusal of record indicates that respondent did not fulfil the condition laid down by this Court in the case of Muhammad Safdar and others v. The State (1983 SCMR 645) and Ajmal Khan v. Liaquat Hayat and another (PLD 1998 SC 97). In these judgments this Court prominently has pointed out that concession of bail before arrest is granted to an accused if it is established that his involvement is based on mala fide by the prosecution. Admittedly no malafide has been prima facie established against petitioner to involve the respondent along with others to be the accused for the commission of the offence. Muhammad Rafiq deceased is brother of petitioner Mst.Qudrat Bibi, therefore, she could not possibly involve the respondent falsely in the commission of the offence because how it is possible that a sister who has seen happening of incident or murder of her brother in her presence would allow the real culprit to escape and will falsely involve some one else in his place. Even otherwise phenomena of substitution is very rare in this part of the country. ”
3. Learned State counsel, additionally submitted that
empties were recovered from the place of incident and the blood stained was
also said to have been found at the place of incident and as far as the
post-mortem report is concerned it shows three bullet entries and three exit
entries and that there is no enmity stated to be in existence between the
applicants and the complainant. He relied upon a case of Suhail Ahmed v. State
2000 P.Cr.L.J 235 Karachi, in terms whereof the complainant in his further
statement and eyewitnesses in their 161, Cr.P.C had categorically charged the
accused and in their presence for having instigated the main culprits to finish
the complainant party whereupon they fired upon four persons and caused
injuries.
4. I have heard the learned counsel and perused the record. It appears that initially in FIR registered on 07.3.2011 names of the applicants were not disclosed, all that was stated that three persons were coming with open faces on motorcycles from Shahdadkot direction and the complainant and witnesses seen them very well and it is stated in the FIR that they could recognize them as soon as they see them again. It is further stated in the FIR that the said three persons got down from the motorcycle and took out pistols from their folds and directly fired upon deceased/victim. Subsequently, after 04 months and 12 days i.e. on 19.7.2011 complainant Sobho Khan, Deedar Hussain and Din Muhammad recorded their statements under section 161, Cr.P.C and they nominated the three applicants to have been involved in the incident registered on 07.3.2011 against some unknown persons. It is alleged that they remained busy in searching the accused persons , then on 24.6.2011 at 5.00 p.m. he and other witnesses referred above saw these people sitting at a hotel and found the accused persons/applicants who killed the son of Sobho as they were sitting amongst others and they came to know about their names on that very day as mentioned in the said statements.
5. In the entire application it has not been convincingly stated as to what malafide was involved in nominating the applicants after 04 months and 12 days. Statement of the applicants that since they have been involved after 04 months and 12 days is sufficient to establish the malafides, I am afraid, is not convincing statement. The complainant and the eyewitnesses have categorically nominated the applicants in their statements and as observed by the Honourable Supreme Court that no court would have any power to grant pre-arrest bail unless all the conditions specified for allowing bail before arrest specially the condition regarding malafides were proved. Perusal of the record shows that no such ground was available or were made out as far as bail application is concerned. In view of aforesaid facts and circumstances and in view of medical post-mortem report and the statements of the eyewitnesses I am not inclined to grant pre-arrest bail in favour of the applicants and being so the instant application stands dismissed and the interim pre-arrest bail already allowed to them is hereby recalled. Accordingly, bail application is dismissed.
Judge
Abid H. Qazi/**