ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD.

Cr. B.A.  No. S — 218 of 2015.

Cr. B.A.  No. S — 219 of 2015.

DATE                                     ORDER WITH SIGNATURE OF JUDGE

09.03.2015.

FOR HEARING

Mr. Kashif Hussain Aga, Advocate for the applicants along with the applicants.

Complainant Muhammad of Crime No.35 of 2015 in Cr. B.A.  No. S — 218 of 2015 present.

Complainant Sahib Khan Halepoto of Crime No.38 of 2015 in Cr. B.A.  No. S — 219 of 2015 present.

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

MUHAMMAD ALI MAZHAR, J.-   This common order will dispose of aforesaid bail applications as both the crime numbers are interlinked and can be disposed of conveniently.

Crime No.35 of 2015.

            This F.I.R. has been lodged by complainant Muhammad Hussain under section 302, 114, 34 PPC at Police Station Bandhi. The incident occurred on 8.6.2014 and the F.I.R. was lodged on the same date. The complainant stated that he has three sons. One month back from the date of incident Mohammad Nawaz Jamali and others exchanged hot words with the son of the complainant and also fought with each other on which Mohammad Nawaz Jamali and others were annoyed and they threatened to murder the son of the complainant. On the fateful day complainant along with his sons Mumtaz Ali and Mir Muhammad Jamali, maternal cousin Muhammad Rafique Brohi were present in the house when complainant’s son went out of the house, there was some hue and cry so the complainant his son Meer Mohammad and maternal cousin Muhammad Rafique came out from the house and saw that Mohammad Nawaz Jamali, Haq Nawaz Jamali armed with pistols and Rab Nawaz Jamali empty handed (Applicants) were standing with the son of complainant Mumtaz Ali where Rab Nawaz Jamali instigated the other accused persons and on his instigation Haq Nawaz Jamali and Muhammad Nawaz Jamali made straight fires on the son of complainant Mumtaz Ali Jamali. The complainant’s son sustained firearm injury on his left side of abdomen and one another fire was hit on the right side of face and blood was oozing and died instantaneously. The complainant took the dead body to R.H.C. Bandhi for postmortem and also informed the police through mobile phone.

Crime No.38/2015

In this crime the complainant is the State through Head Constable Sahib Khan Helepoto. It is stated the H.C. Sahib Khan along with other police officials was on patrolling on 8.6.2014. He received a spy information that Rab Nawaz, Muhammad Nawaz and Haq Nawaz Jamali (Applicants) had committed the murder of Mumtaz Ali Jamali and they have also consulted to kill their sister Mst. Panah Khatoon wife of Abdul Majeed Jamali on the pretext of honour. On receiving of such information the H.C. Sahib Khan proceeded towards the house of Abdul Majeed Jamali where they saw Rab Nawaz Jamali empty handed while Haq Nawaz Jamali and Muhammad Nawaz Jamali were carrying pistols and they entered in the house of Abdul Majeed Jamali. The door of the house of Abdul Majeed Jamali was lying open where they saw that the applicants/accused raising allegations against their sister that she had illicit relationship with Mumtaz Ali Jamali. Muhammad Nawaz Jamli made straight fire on his sister Mst. Panah Khatoon which hit her below the left side of forehead near the eye and Haq Nawaz Jamali made straight fire which hit her left hand near the thumb. On seen the complainant party the applicants/accused climbed the wall and escaped. Mst. Panah Khatoon died and after completion of codal formalities her postmortem was conducted and such F.I.R. was lodged.

            Both the applications were fixed for orders on 25.2.2015 before the learned Single Judge of this Court for seeking interim pre-arrest bail but the learned Single Judge issued notices to the complainant and A.P.G. However, the request for grant of interim pre-arrest bail was not entertained till next date of hearing.

            The learned counsel for the applicants in both the applications argued that the applicants have been falsely implicated in the case and he further argued that there is no reasonable ground to believe that applicants/accused have committed the offence of murder. It was further averred that the interim pre-arrest bail was granted by the trial Court which was recalled vide order dated 20.2.2015. The main thrust of arguments was that the legal heirs of deceased have patched-up the matter outside the Court and they have forgiven the applicants/accused. The husband and mother of deceased have separately filed their affidavits of no objection before the trial Court. So far as the crime No.38/2014 is concerned he argued that it was lodged after the delay of seven days without any explanation. The L.Rs. have patched up the matter with the intervention of nekmards. He further argued that while dismissing the bail applications, the trial Court has failed to appreciate that the matter was amicably patched up and resolved and if the trial Court would have confirmed the interim pre-arrest bail, the parties could have filed their compromise application more conveniently and if this Court does not grant bail to the applicants/accused, they will be arrested which will cause them undue humiliation and harassment. On one hand he argued that matter has been patched up but in ground No.13, he himself mentioned in the bail application that all the witnesses are hostile to the applicants, as such, there is no question of tampering with the prosecution witnesses.

            Since the notice was issued to the prosecution, therefore, the complainant in Crime No.35 of 2014 Muhammad Hussain and H.C. Sahib Khan Halepoto both were also present.

            Conversely learned A.P.G. argued that this is a case of double murder so the applicants cannot claim the concession of interim pre-arrest bail as a matter of right. The son of the complainant in Crime No.35 of 2014, was murdered by the same applicants, thereafter, they also murdered their own sister on the pretext of honour killing so they do not deserve any leniency. Mere filing affidavit of complainant in the trial Court exonerating the applicants is no ground for seeking order considering the bail plea by this Court. He vehemently opposed both the bail applications and supported the order passed by the learned trial Court.

            I have considered the submissions made by the learned counsel and perused the material available on record.

            If I look to the grounds raised by the counsel for the applicants he only focused the plea of compromise and argued both bail applications on the premise that since the parties have resolved the issue and patched up the matter amicably, therefore, the discretion of granting pre-arrest bail must be exercised by this Court. Whether the complainant has entered into compromise or not it is to be seen by the trial Court when appropriate application will be moved and the requisite inquiry will be conducted by the learned trial Court before passing final order on the compromise application. It is time and again held by the Superior Courts that mere filing of affidavit or given no objection by the legal heirs of any deceased person the accused persons are not automatically entitled for the grant of bail but their case needs to be considered on the touch stone of section 497 Cr.P.C. to observe whether any reasonable ground exists for the grant of bail or not. Though in both the crime numbers it was stated that Rab Nawaz one of the applicants was empty handed but he cannot be given benefit of bail as in both the different scene of crimes he was also present and the offence as stated to be committed in league of all the applicants went at the scene of offence with common intention and though Rab Nawaz was not carrying weapon but the murder was committed at his instigation.

            The learned counsel further argued that the crime No.38 of 2014 was lodged on 15.6.2014 while offence was committed on 8.6.2014 so he argued that there is a considerable delay in lodging the F.I.R. but on the other hand the H.C. Sahib Khan Halepoto himself mentioned in column No.5 that due to not lodging F.I.R. by the legal heirs of deceased the State intervene and lodged the F.I.R. was in my view he has reasonably explained  the delay. Even other wise no malafide intention is alleged in the bail applications to show that either the police or the complainant have falsely implicated the applicants in both the crime.

            Difference in bail before arrest and after arrest is that in pre-arrest, elements of malafide, false involvement, arrest with motive of humiliation and malicious prosecution shall be present. When condition of malafide or other elements are not satisfied, no case of bail is made out. The above important elements or ingredients are also lacking in the present case. The purpose of pre-arrest bail is to protect a person from disgrace and to avoid humiliation. This concession cannot be allowed when prima facie murder case is made out. The applicants have been nominated with specific roles i.e. causing firearm injury hence in my view no case of bail is made out.

            Not only one person has lost his precious life but the same applicants have also murdered their sister on the pretext of honour killing which has become a menace in the society which needs to be discouraged.

In the case of MUHAMMAD ARSHAD V. MUHAMMAD RAFIQUE and another (PLD 2009 Supreme Court 427) the Honourable Supreme Court has summarized the grounds on which the benefit of pre-arrest bail can be extended and they are mentioned at Page-431 of the judgment, which are as follows:-

(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;

(b) pre-arrest bial is not to be used as a substitute or as an alternative for post-arrest bail;

(c) bail before arrest can not be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure 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 were, in fact, sufficient grounds warranting further inquiry into his guilt;

(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disagree and dishonour him;

(e) such a Petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive at law; and finally that;

(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instant i.e the Court of Sessions, before petitioning the High Court for the purpose. 

            As a result of above discussion both the applications are dismissed.

                                                                                    Judge

A.