Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail App. No. S – 357 of 2019

 

 

Date of hearing                    :           29.11.2019.

 

 

Mr. Bakhshan Khan Mahar, Advocate for applicants / accused.

Mr. Riaz Hussain Mallah, Advocate for complainant.

Mr. Abdul Rehman Kolachi, Deputy Prosecutor General.

 

 

O R D E R

 

 

NAIMATULLAH PHULPOTO, J. – Applicants / accused (1) Awais son of Suleman, (2) Imtiaz son of Budhal, (3) Ghulam Murtaza son of Muhammad Ismail, (4) Ghulam Shabir son of Punhal alias Punhoo and (5) Muharam Ali son of Andal, all by caste Budh seek pre-arrest bail in Crime No.107/2019 registered at P.S Kandiaro, District Naushahro Feroze on 19.06.2019 for offences under Sections 376(i), 511, 506, 34, PPC.

2.         Brief facts of the prosecution case are that complainant Mst. Shabnam lodged her report on 19.06.2019 on the directions of learned IIIrd Additional Sessions Judge, Naushahro Feroze at P.S Kandiaro. It was recorded vide Crime No.107/2019 for offences under Sections 376(i), 511, 506, 34, PPC alleging therein that two years back, her husband Jan Muhammad had verbally divorced her. Out of the said wedlock, she has one son aged about 17/18 years. Complainant is aged about 35 years. It is further alleged that on 15.04.2019, she went to purchase the household articles from the shop. While she was returning back and reached near Lemon Garden of Rafique Budh, where all of sudden three accused persons appeared. They were (1) Awais son of Suleman armed with mouser, (2) Imtiaz son of Budhal armed with repeater and (3) Ghulam Murtaza son of Muhammad Ismail empty handed. It was 06:00 p.m. It is alleged that they tried to commit zina with her. She gave the name of Allah to them in order to save her dignity, but accused did not accept. Then she raised cries, which attracted PWs Rafique and Mukhtiar Budh. Then the accused went away. She took shelter in the house of Piyar Ali and went to the Police Station for lodging the report, but police refused. Finding no other way, she filed an application under Section 22-A & B, Cr.P.C before IIIrd Additional Sessions Judge, Naushahro Feroze and got directions for registration of the FIR, but before registration of the FIR, on 13.05.2019, she was present in the house. Applicants / accused Ghulam Shabir son of Punhal and Muharam son of Andal appeared at her house and issued her threats, not to register FIR else she will face the consequences. She bluntly refused as her honour was involved. She went to the Police Station and lodged the FIR. It was recorded against the accused persons under the above referred sections.

3.         After usual investigation, challan was submitted against the accused under Sections 376(i), 511, 506, 34, PPC. Learned DPG informed that trial Court has framed the charge against the applicants / accused and case is fixed for evidence.

4.         Applicants / accused applied for pre-arrest bail before learned Additional Sessions Judge, Kandiaro. Pre-arrest bail was refused to the applicants / accused vide order dated 25.06.2019 mainly on the ground that after grant of interim pre-arrest bail, applicants / accused did not join the investigation and ingredients for grant of pre-arrest bail were not satisfied.

5.         Mr. Bakhshan Khan Mahar, learned advocate for the applicants / accused mainly contended that allegation of attempt of zina is attributed to applicants / accused Awais, Imtiaz and Ghulam Murtaza, and names of applicants / accused Ghulam Shabir and Muharam have been mentioned in the second episode before registration of the FIR. It is argued that complainant has lodged the FIR against the applicants / accused under the influence of PW Rafique. It is further argued that FIR has been lodged against the relatives of her previous husband due to the dispute over the plot. Mr. Bakhshan Khan Mahar, in order to substantiate his contentions, has referred to the documents to show that there is dispute between previous husband of the complainant and PW Rafique over the plot. Lastly, it is contended that it is only the case of the attempt of zina and allegations against the applicants / accused require further inquiry. In support of his contentions, he has relied upon the case reported as Malik Jamsheed v. The State (SBLR 2019 Sindh 1929).

6.         Mr. Abdul Rehman Kolachi, DPG argued that this is the case of attempt of zina. It is further argued that after usual investigation, challan has been submitted against applicants / accused. Learned DPG recorded on objection for grant of pre-arrest bail to applicants / accused.

7.         Mr. Riaz Hussain Mallah, counsel for the complainant argued that allegations are serious in nature and ingredients for grant of pre-arrest bail are not satisfied. Complainant is present in the Court and states that applicants / accused Awais, Imtiaz and Ghulam Murtaza attempted to commit her zina finding her along in the evening time. She has opposed the pre-arrest bail to applicants / accused.

8.         I have carefully heard the learned counsel for the parties and perused the contents of the FIR, 161, Cr.P.C statements of the PWs Rafique and Mukhtiar, and other material collected during the investigation. It appears that after the incident, complainant went to the Police Station for lodging the FIR, but she was refused. Then, she approached the learned Additional Sessions Judge / Ex-Officio Justice of Peace, and after seeking the directions, lodged the FIR. Complainant has categorically stated in the FIR that applicants / accused Awais, Imtiaz and Ghulam Murtaza attempted to commit zina with her in the evening time, when she had gone to purchase household articles, but she raised cries and gave name of Allah to the accused. On her cries, PWs Rafique and Mukhtiar were attracted and accused went away. Prima facie, it appears that complainant Mst. Shabnam was divorced by her husband and finding her alone in evening, applicants / accused tried to commit zina with her. Complainant is present in the Court and states that applicants / accused Awais, Imtiaz and Ghulam Murtaza tried to commit zina with her.

9.         Law is very much settled that grant of pre-arrest bail is an extra ordinary remedy in criminal jurisdiction; it is diversion of usual course of law, arrest in cognizable cases; a protection to the innocent being hounded on trump up charges through abuse of process of law, therefore an applicant seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide; it is not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation. Applicants / accused have failed to satisfy the Court about the mala fide on the part of the complainant and police. It is reflected from the order of the learned Additional Sessions Judge that applicants / accused, after grant of interim pre-arrest bail, did not join the investigation. In the recent judgment in the case of Rana Abdul Khaliq v. The State and others (2019 SCMR 1129), Hon’ble Supreme Court has laid down the following principle:

“2.       Grant of pre-arrest bail is an extra ordinary remedy in criminal jurisdiction; it is diversion of usual course of law, arrest in cognizable cases; a protection to the innocent being hounded on trump up charges through abuse of process of law, therefore a petitioner seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide; it is not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation. Ever since the advent of Hidayat Ullah Khan's case (PLD 1949 Lahore 21), the principles of judicial protection are being faithfully adhered to till date, therefore, grant of pre-arrest bail essentially requires considerations of mala fide, ulterior motive or abuse of process of law, situations wherein Court must not hesitate to rescue innocent citizens; these considerations are conspicuously missing in the present case. The case referred to by the learned Judge-in-Chamber unambiguously re-affirms above judicial doctrine and thus reliance being most inapt is unfortunate to say the least.

3.         The respondent is in attendance; despite notice and knowledge, he has not arranged representation, seemingly as a strategy to win time and this does not absolve this Court to decide this case posted for hearing, at public expense. Impugned order being in contravention of settled judicial principles cannot sustain. This petition is converted into appeal and allowed, the impugned order is set aside and the bail granted to the respondent is cancelled.”

            In Civil Petition Nos.4029, 4070, 4092, 4110, 4111, 4112 & 4131 of 2019 (unreported) recently, decided on 26.11.2019, Hon’ble Supreme Court has also held as under:

“5.       It was on a complaint alleging violation of rules as well as embezzlement in the project that the High Court of Sindh directed a probe, on the basis whereof, physical verification by the experts found non-execution of various planks of the project as well as partial completion of the work, found much less than the required standards. In this backdrop, malafide cannot be conceivably attributed to the initiation of proceedings against the petitioners, in absence whereof, they cannot claim judicial protection in a prosecution that otherwise sans relief of bail. While refusing bail to the petitioners, the learned High Court has directed the Accountability Court to conclude the trial within a period of three months requiring the accused to cooperate in the conclusion thereof, an option to conveniently vindicate their position sooner rather than later.

            Grant of pre-arrest bail is an extraordinary remedy, essentially rooted into equity, a judicial power to be cautiously exercised with a view to protect the innocent from the horrors of abuse of process of law, in prosecutions initiated by considerations and for purposes stained with the taints of malafide; this judicial protection is not to be extended in every run of the mill criminal case, with pleas structured on bald denials and parallel stories. View taken by the learned High Court being well within the remit of law does not call for interference. Petitions fail. Dismissed. Leave refused.”

10.       Bail before arrest cannot be granted unless person seeking it satisfies conditions specified under Section 497(2), Cr.P.C and establishes existence of reasonable grounds leading to believe that he is not guilty of offence alleged against him and there are in fact sufficient grounds warranting further inquiry. In this case, there appear reasonable grounds for believing that applicants attempted to commit rape with a woman. Learned advocate for applicants / accused could not satisfy this Court about the mala fide and ulterior motive of divorced lady against the applicants / accused.

11.       For the above stated reasons, so far applicants / accused Awais, Imtiaz and Ghulam Murtaza are concerned, no case for grant of pre-arrest bail to them is made out. However, case of applicants / accused Ghulam Shabir and Muharam is distinguishable. These two applicants / accused were not present at the time of actual occurrence / attempt. Mere they had issued threats to the complainant Mst. Shabnam not to register the case against the main accused named above. Such allegation requires evidence. Therefore, a case for grant of pre-arrest bail to these two applicants / accused Ghulam Shabir and Muharam is made out and interim pre-arrest bail already granted to them is confirmed on same terms and conditions. However, interim pre-arrest bail already granted to applicants / accused Awais, Imtiaz and Ghulam Murtaza is hereby recalled.

12.       Observations made herein above are tentative in nature. Trial Court shall not be influenced while deciding the case on merits. However, trial Court is directed to decide the case within three (03) months under intimation to this Court.

13.       Instant Criminal Bail Application is disposed of in the above terms.

 

 

J U D G E

Abdul Basit