IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Bail Application No.S-36 of 2020

along with Crl. Bail Application No.S-719 of 2019

Applicants/accused: Asif Ali S/o Muhammad Moriyal Mangi, Inam Ali S/o Umed Ali Abbasi, Through Syed Zaffar Ali Shah Bukhari, Advocate

Complainant: Muhammad Hassan S/o Lal Dino Bijarani Through Mr. Abdul Razzaque Jogi, Advocate

The State: Through Mr. Abdul Rehman Kolachi, DPG

Date of Hearing: 10.02.2020

O R D E R

ZULFIQAR ALI SANGI, J;- Through these applications, applicants/accused named above seek pre-arrest bail in FIR No.114/2019, registered at Police Station Site Area, District Sukkur for offences punishable under Sections 365-A, 342, 377, 395, 201, 120-B, 217, 218, 506/2 & 34 PPC. Applicants/accused had approached for bail before arrest to the learned Sessions Judge Sukkur and they were granted interim pre-arrest bail, however, later on, it was transferred to learned Additional Sessions Judge-V, Sukkur, who declined the bail vide order dated 31.10.2019; hence applicants have approached this Court with the same prayer.

2. Briefly, the facts of the prosecution case are that on 06.09.2019 at 1700 hours, complainant Muhammad Hassan lodged FIR at Police Station Site Area Sukkur, stating therein that on 24.08.2019, complainant along with his sons was returning from the Court, when at about 1:00 p.m, they reached Admore CNG Station, saw accused ASI Lutufullah, ASI Inam Abbasi, WHC Muhammad Aslam Korai, PC Asif Ali Mangi, PC Ghulam Deen, PC Zahid Shaikh standing there, and on seeing complainant party accused Waheed instigated other accused for arresting the complainant and his sons. On such instigation accused took complainant and his sons at Police Station Site Area, so also robbed 8200/- from complainant. Thereafter accused released the complainant for arranging amount Rs.50,000/- as bribe. Thereafter complainant came at house arranged such amount and then went to Police Station where he saw accused party took out them from lockup, in naked condition so also tortured them physically, where complainant party paid Rs.35000/ as bribe money to police party for releasing of his sons but the accused persons did not release his sons. Then on 26.08.2019, complainant filed an application under Section 491 Cr.P.C against wrongful confinement of his sons, and raid was conducted and only his son Abid Hussain was recovered while Noor Hussain was not found in Police lockup, as the police officials hided him. The Abid Hussain disclosed in Court that Police officials were committing Zina with him time to time, then after getting medical letter, complainant got the FIR lodged.

3. Syed Zaffar Ali Shah Bukhari, learned Counsel for applicant/accused contended that applicants/accused are innocent and have been involved by the complainant due to enmity; that there is delay of 16 days in registration of FIR and same has not been explained by the complainant; that complainant has involved the applicants under the influence of Ubedullah Kalwar Advocate who remained Counsel of the complainant in other cases and his brother Innayatullah Kalwar is WPC in the Police department as such both are inimical terms with co-accused Zahid Sheikh; that JIT was constituted and after the investigation case was recommended to be disposed of under ‘B’ Class but learned Magistrate did not agree and took cognizance of the case; that there is no mark of violence on the body of victim. Lastly, he contended that allegations against applicants are general in nature and prayed for confirmation of bail. He relied upon case reported in 2015 SCMR 1394.

4. Learned Deputy Prosecutor General for the State assisted by learned Counsel for the complainant contended that applicants along with other accused firstly kidnaped the victim then made torture upon him and committed Sodomy; that the allegations are supported by the report of raid Commissioner who recovered the victim from their custody and allegation of sodomy also confirmed from the report of doctor; that delay has been explained by the complainant that he first approached the concerned police then filed application before competent court of law and on the orders of Court, FIR was registered. Lastly, they contended that no malafides has been pointed out against the complainant and the investigating agency therefore, they are not entitled for grant of pre-arrest bail therefore, their bail application may be dismissed.

6. I have heard the learned Counsel for the parties and perused the material available on record with their able assistance.

7. At the outset, it is observed that the above named applicants are seeking pre-arrest bail, therefore, before considering the cases of applicants for such a relief, I may observe that the conditions for grant of pre-arrest and post-arrest bail are quite different. In this respect the Honourable Supreme Court has restated the law in relation to the grant of pre-arrest in the case reported as Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427) as follows:

“Following is the frame-work within which and the guidelines according to which, the jurisdiction vesting in the High Courts and the Courts of Session is to be exercised:-

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 bail is not to be used as a substitute or as an alternative for post-arrest bail;

c. bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified in 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 disgrace and dishonor 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 instance i.e. the Court of Session, before petitioning the High Court for the purpose.

8. Perusal of record reflects that complainant at the first instance moved an application to the SSP Sukkur, thereafter, he moved application under Section 491 Cr.P.C before learned Session Judge, Sukkur alleging that applicants along with others Police officials and private persons have kidnaped his sons and are demanding some amount for their release, Police officials also maltreated the son of complainant in his presence on such application U/S 491 Cr.P.C filed by complainant, raid was conducted by learned Magistrate and son of complainant Abid Hussain was recovered from the illegal custody of applicants, who disclosed the complainant that police officials committed sodomy with him and after hearing the same complainant moved another application for FIR along with application for referring the victim for MLC on such application son of complainant was referred to hospital for medical checkup and certificate, victim Abid Hussain was examined by the doctor and doctor confirmed that offence of sodomy was committed with the victim Abid Hussain and issued such certificate.

9. Enmity was suggested against Ubedullah and Innayatullah Kalwar and not with the present Complainant and orders showed that Ubedullah Kalwar remained counsel of the Complainant in the present case in absence of any ill-will against the complainant the enmity with counsel cannot be treated enmity with Complainant who is an independent person and not related to said counsel.

10. Serious allegations of kidnapping, detention and committing of sodomy are leveled against the applicants and other police officials and same were supported by the report of Magistrate who recovered son of Complainant from the illegal custody of police on application of complainant and MLC issued by the doctor who confirmed that act of sodomy was committed with son of the complainant. The applicants are charged with the offence which provides punishment for imprisonment for life and the same fall within the prohibitory clause of section 497 Cr.P.C.

11. The delay in the registration of FIR in the present case cannot be used as ground for grant of bail as the applicants are police officials and used influence upon the police officials and were posted at the same police station they also used influence upon the investigation officers who were the members of the JIT which is clear from the conduct of investigation officer who submitted report under B class even on supportive report of doctor about the sodomy with the son of complainant and report of Magistrate who recovered the son of complainant from the illegal custody of police officials (applicants) which also suggest that if the court not passed order for FIR the police may not register the same.

12. A police constable, if he commits crime while in uniform, is probably the most dangerous criminal that a society can face. When wardens become poachers, the game would certainly cease to exist. In the present case a police officials firstly arrested innocents and tortured them and thereafter committed offence of sodomy. What more act of a hardened criminal could be there than such an act and that too by police personnel.

13. No mala fide on the part of the Complainant is pointed out by the learned counsel. It is now settled law that pre-arrest bail is extraordinary relief and is only available in cases where there has been mala fide on the part of the complainant or the investigating agency. In this regard, reference may be made to the case of Rana Mohammed Arshad v. Muhammad Rafique (PLD 2009 SC 427) and Mukhtar Ahmad v. The State and others (2016 SCMR 2064).

14. It is a well-settled principle of law that deeper appreciation of evidence is not permissible at the stage of bail but the material is to be assessed tentatively, from the tentative assessment of material available on record the applicants are unable to make out their case for confirmation of bail as such the interim pre-arrest bail already granted to them by this Court vide orders dated 21.01.2020 & 16.12.2019 are recalled and these bail applications are dismissed.

15. Needless to mention that the observations made hereinabove are tentative in nature and shall not cause prejudice to the right of either party at trial.

J U D G E