ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

Cr. B.A. No. S – 1277 of 2014.

DATE ORDER WITH SIGNATURE OF JUDGE

29.12.2014.

FOR HEARING.

Mr. Badal Gahoti, Advocate for applicants.

Mr. Shahid Ahmed Shaikh, Asstt. P.G. for the State.

Mr. Sajjad Ahmed Chandio, Advocate for complainant.

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Through instant application applicants seek pre arrest bail in crime No.37 of 2014 Police Station Nasarpur under section 302, 324, 114, 147, 148, 149, 504 PPC.

2. Precisely, relevant facts for disposal of instant bail application are that on 29.9.2014 complainant was available in his house; there was dispute over the plot; on receiving information that quarrel has taken place at the plot, complainant alongwith Mohammad Fazil, Ghulam Nabi, Roshan, Mohammad Naeem and Abdul Shakoor, reached there, where they found applicants Darbar Ali Shah with TT pistol, applicant Azizullah with TT pistol and applicant Karim Bux armed with hatchet with their accomplices. Applicant Darbar Ali Shah instigated others, not to leave them; all accused persons including applicants No.1 and 2 caused straight fire shot injuries to complainant party resultantly two persons lost their lives and one received fire arm injury. Applicant No.3 also caused hatchet injuries to Abdul Shakoor. Such F.I.R. was lodged; names of applicants No.1 and 2 were placed in column No.2.

3. Learned counsel for applicant’s inter-alia contends that this is a case of counter version; in fact applicant party lodged F.I.R. bearing crime No.36 of 2014 under section 452, 302 and 34 PPC wherein one person lost his life; on this aspect only applicants are entitled for pre-arrest bail. Further he contends that role of applicant No.1 is only instigation; names of applicants were placed in column No.2; question of aggressor and aggression is yet to be decided by the trial Court; applicants have joined the investigation from the day one and regularly attending the trial Court, whereas accused in counter case are absconders. In support of his contention he has relied upon 2014 S.C.M.R. 1355, 1972 S.C.M.R. 682, 2013 S.C.M.R. 1414, 2010 S.C.M.R. 1219, 2005 S.C.M.R. 1539 and 2009 P.Cr.L.J. 320.

4. Conversely learned A.P.G. and counsel for complainant contend that in pre-arrest bail, extra ordinary circumstances are required for grant of bail but applicants have failed to justify their false implication; instant case relates to the murder of two persons, therefore, merely on plea of cross version they are not entitled for bail. In support of contention learned counsel for complainant relied upon 1981 S.C.M.R. 1092, 1975 S.C.M.R. 391, 1992 S.C.M.R. 501 and 2003 S.C.M.R. 537, whereas learned A.P.G. relied upon 2006 S.C.M.R 933.

5. After careful consideration of contentions raised by respective counsels and meticulous examination available on record, manifestly applicants are allegedly involved in a case of two murders over the dispute of one plot. It has also come on record that F.I.R. No.36 of 2014 was lodged which reflects the date and place of offence as same wherein, one person lost life at the hands of complainant party. Worth to add here that it is not necessary to extend the bail on mere ground of counter version in routine but the requirement of the law, even in such like pleas, is that of counter case / version which would necessarily make the case one of further probe else the whole scheme of Section 497 of the Code shall fail which, per its legal limitations, prescribe the circumstances for granting bail. Reference can be made to the case of Liaquat Ali v. State (2013 SCMR 1527) wherein honourable Supreme Court of Pakistan held that:

4. Haing considered the submissions made by learned counsel for the parties and learned Law Officer, it may be observed at the outset that every case of cross version does not necessarily make the guilt of the accused a matter of further enquiry and the Courts in such cases may resort to a tentative assessment of the material placed before them to form an opinion whether a case of further enquiry qua an accused is made out or not.

In Iqbal Hussain v. Abdul Satar and another (PLD 1990 SC 758) while setting aside the bail granting order of the High Court, the Court referred to the tendency in courts to misconstrue the concept of further enquiry and held as follows:--

‘It may straightaway be observed that this Court has in a number of cases interpreted subsection (2) of section 497, Cr.P.C which , with respect, has not been correctly understood by the learned Judge in the High Court nor has it been properly applied in this case. While the thought that it was a case of further inquiry which element, as has been observed number of times in many cases, would be present in almost every case of this type. The main consideration on which the accused becomes entitled to bail under the said subsection is a finding, though prima facie, by the police or by the Court in respect of the merits of the case. The learned Judge in this case avoided rendering such prima facie opinion on merits as is mentioned in subsection (2) of section 497 Cr.P.C and relied only on the condition of further inquiry. This approach is not warranted by law. Hence, the case not being covered by subsection (2) of section 497 Cr.P.C, the respondent was not entitled to bail thereunder as of right’

6. It is also pertinent to mention that provision of Section 498 of the Code in its application is not alike to that of Section 497 because the criterion for grant of bail in both is entirely different from each other. In former one, alleged with an offence falling prohibitory clause, is to make out a case of ‘further probe/enquiry’ while in later the mala-fide or intended arrest to be for some ulterior motives. The instant bail plea is one through which the present applicants / accused are seeking extra ordinary concession of pre-arrest bail, therefore, the requirement of law shall be to establish malafide, being a pre-condition for grant of pre-arrest bail.

7. In the instant matter, there are serious allegations against the two applicants with regard to causing the murder whereas it is alleged that applicant No.3 was also with them and shared his common intention by causing hatchet injury to a witness; such action of the applicants / accused, prima facie, resulted in causing irreparable loss of two lives. The present applicants / accused have been attributed specific allegations in happening of alleged incident which is one falling within prohibitory clause of Section 497(i) Cr.P.C. The applicants / accused though have alleged a dispute over plot but it would not be legally justified to believe, at this stage, that complainant party shall attribute specific allegations against innocents while reporting the matter of death of two of their blood-related. Thus prima facie the applicants / accused appear to be linked with the alleged offence.

8. Keeping in view the given circumstances, applicants are not entitled for pre-arrest bail. Consequently, interim order is recalled and instant bail application being devoid of merits is dismissed.

JUDGE