ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Bail Application No. S – 549 of 2020

Date of hearing

Order with signature of Judge

For hearing of bail application

Date of short order: 16.12.2021

Date of reasons: 22.12.2021

M/s Sohail Ahmed Khoso and Muhammad Ali Dayo, Advocates for applicants along with applicants.

Mr. Hamayoun Shaikh, Advocate for complainant a/w complainant.

Mr. Aftab Ahmed Shar, Additional Prosecutor General.

O R D E R

MUHAMMAD SALEEM JESSAR, J. Through this application, applicants / accused Muhammad Ismail and Abdul Rehman, both by caste Maitlo, have sought their admission on pre arrest bail in crime No.176/2019 PS B-Section, Khairpur Mirs, under Sections 302, 148, 149, 337-H(ii), 114, PPC. The case has been challaned by the police on 11.10.2019, which is now pending for trial before the Court of Additional Sessions Judge-IV, Khairpur Mirs, vide Sessions Case No.699/2019 Re: The State v. Ali Dino alias Zanwar Maitlo and others. The applicants raised bail plea before Court of Sessions, which subsequently was assigned to the Court of 4^th Additional Sessions Judge, who, after hearing the parties as well ADPP, turned down their request in terms of his order dated 11.09.2020. Hence, this bail application.

2. Facts of the case, per FIR, are as under:

“Complaint is that my husband deceased Abdul Sattar had two wives; out of them about 02 months ago, my husband had given divorce to one wife namely Mst. Rukhsana d/o Shah Nawaz @ Shahan Maitlo, upon which the father and brothers of Mst. Rukhsana were annoyed and were saying that at any time they will murder my husband. On 19.09.2019 I and my husband Abdul Sattar and my sons each Badshah and Abdul Samad and my ailing father-in-law Qalander Bux @ Bago Khan Maitlo were coming in our Cultus Car from Khairpur to our village Bago Khan. When we reached at Ahmedpur Road adjacent to Jamia Masjid, the Car was driven by my husband, who stopped the car in the side and got down us from the car, then he got down and was coming to us. At that time at about 06:00 a.m (morning) accused each (1) Shah Nawaz @ Shahan Maitlo s/o Hussain Bux Maitlo armed with gun, (2) Ayoob Maitlo armed with pistol, (3) Ali-Dino @ Zanwar Maitlo armed with pistol, (4) Muhammad Ismail Maitlo armed with pistol, (5) Abdul Rahman armed with pistol, (6) Abdul Jabbar Maitlo armed with pistol, (7) Abdul Ghaffar armed with Repeater, (8) Rahim Bux armed with pistol, all sons of Shah Nawaz @ Shahan Maitlo, (9) Asadullah s/o Faiz Muhammad @ Faizal armed with lathi, all r/o village Bago Khan Maitlo taluka Khairpur came there. Accused Shah Nawaz @ Shahan shot fire in the air and instigated the remaining accused by saying that Abdul Sattar after ‘divorce’ to my daughter Rukhsana is roaming with another wife. On saying so, accused Muhammad Ayoob made straight fire of pistol which hit to my husband in his left side shoulder, accused Ali-Dino @ Zanwar Maitlo also made straight fire of pistol which hit to him in his right side of flank, accused Abdul Rehman made fire of pistol which hit to my husband on his right shoulder, accused Ismail made pistol fire which hit him on the wrist of right arm with the result, my husband while raising collapsed on the ground and went unconscious. The remaining accused encircled my husband by pointing their weapons and were saying that nobody should come there and if anybody will come, they will also murder him. Accused Shah Nawaz asked to all the accused till death of Abdul Sattar, nobody shall stop the firing. After little while accused Muhammad Ayoob while raising slogan said that Abdul Sattar has died. After that all the accused while raising slogans and making aerial firing ran away towards their houses. Due to firing the vehicles plying on the road were stopped and in the entire village the 'terror' was created. We immediately took Abdul Sattar for treatment by getting letter from police station to Civil hospital, Khairpur wherefrom my husband was referred to Karachi hospital. We were going towards Karachi by taking my husband in Government Ambulance but as soon we reached near hospital, my husband succumbed to firearm injuries and died. We returned back to Civil hospital, Khairpur wherefrom after conducting post mortem report took away dead body of my husband to our village where after funeral ceremony, I have come now for report that due to above said dispute upon the instigation of accused Shah Nawaz @ Shahan Maitlo have committed murder of my husband by causing him firearm injuries with pistols. I am complainant, investigation be done and I shall observe the 'Iddat' period of my husband as per shariat Muhammadi (s.a.a.w)”

3. Learned counsel for the applicants submitted that parties are inimical towards each other over the issue of divorce given by the deceased to the sister of accused; moreover, the FIR is delayed for two days; next submitted during investigation, the applicants were found innocent and therefore were let off; however, at the time of submission of report under Section 173 Cr. P. C, learned Magistrate did not concur his opinion with the police report and by taking cognizance, has arrayed them as accused. He, therefore, submits that case against applicants requires further enquiry; hence, they may be enlarged on bail. In support of his contentions, he has placed reliance upon the cases of Khair Muhammad v. State, 2021 SCMR 130, Zulfiqar v. State, 2020 SCMR 417, Muhammad Yaqoob alias Kala v. The State, 2012 MLD 355 and Mahmood Khan v. Mst. Shaheen alias Shamim and 7 others, 2012 MLD 495. He, however, submitted both accused have been assigned specific role of causing fire shot injuries to the deceased.

4. On the other hand, Mr. Aftab Ahmed Shar, learned Additional Prosecutor General for State opposes the bail application on the ground both the applicants are nominated in the FIR with specific role of causing fire shot injury to deceased and that the offence with which they have been charged involves with capital punishment and no malice or animosity has been urged against the prosecution, which may smell mala fide on the part of prosecution. He further submitted it will be appropriate for applicants to surrender before the trial Court or they may be taken into custody so that trial could be commenced and conclude within no time. He, submitted that basic ingredients for grant of pre-arrest bail as have been enshrined by the Hon'ble Supreme Court in its numerous judgments are lacking in this case; therefore, applicants are not entitled for anticipatory relief in terms of section 498, 498-A, Cr. P. C. In support of his contentions, learned Addl. P. G. referred the case of Rana Muhammad Arshad v. Muhammad Rafique and another, PLD 2009 SC 427.

5. Mr. Hamayoun Shaikh, learned counsel for the complainant along with complainant submits due to compromise between the parties, the complainant has no objection for grant of bail; however, admits that no proper application or affidavit of the complainant has been filed. He further submits that no joint application in terms of Section 345(6), Cr. P. C, has ever been preferred by the accused before the trial Court.

6. Heard arguments and perused the record.

7. Admittedly, the applicants are nominated in the FIR with specific role of causing fire shot injury to deceased Abdul Sattar. Per FIR, accused Muhammad Ismail fired from his pistol upon deceased Abdul Sattar, which landed on his shoulder while accused Abdul Rahman fired from his pistol upon the deceased Abdul Sattar, which landed on his right arm. Both the accused have been charged with offence which carries capital punishment and in such a like nature cases bail cannot be claimed as of right. Though instant bail application was filed on 24.09.2020 and after furnishing surety, the accused had joined trial yet did not proceed with trial but lingered on the proceedings so that they (applicants) as well other absconding accused may take benefit out of concession extended to them in shape of bail. The complainant as well her son, who seems to be minor, present before the Court, have been examined and from their physical appearance as well body language it appears that they have been produced before the Court under coercion and compulsion. Hence, the compromise, if effected between the parties, then proper course for the accused was to file proper application before trial Court in terms of Section 345 Cr. P. C, instead they have produced the complainant without other minors before the Court for seeking concession of bail on oral no objection. As far as contention of learned counsel that applicants were let off by the police during investigation; therefore, case against them require further enquiry, is concerned, it may be observed that IO was not competent to record defence evidence during investigation; besides, the persons who were examined by the IO during investigation as DWs are not nominated in the FIR as witnesses; hence, their testimony carries no weight and cannot be considered at this stage more particularly when the PWs, who are nominated in the FIR, have fully supported the case of prosecution and the accused applicants have been assigned specific role of causing fire shot injuries to deceased. Hence, sufficient material has been made available on record to connect them with commission of instant offence and their plea of alibi is to be thrashed out by the trial Court after recording evidence of prosecution witnesses. Thus, no case for interference was made out. The basic ingredients for grant of bail as are enshrined by the Hon'ble Supreme Court of Pakistan are not attracted in this case. Reliance can be placed upon the case of Rana Abdul Khaliq v. The State and others, 2019 SCMR 1129, wherein it has been held as under:

“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.”

8. It is settled law one cannot claim bail in non-bailable offence as of right except reasonable grounds showing tangible evidence with regard to the mala fides or any ulterior motive on the part of prosecution. In absence of such relevant factors, which the accused have miserably failed to establish, they are not entitled for extraordinary relief in shape of pre-arrest bail. While considering the bail matter of an accused person involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail, until and unless the case is covered by any of the provisions in subsection (1) of Section 497, Cr. P. C. In case, the bail is to be granted to every accused, even if he is charged with a non-bailable offence, without considering the merits of the case, merely on the plea that every accused is presumed to be innocent unless proved otherwise, the very concept and purpose of drawing a line between bailable and non-bailable offences and various kinds of punishments, as prescribed by the law, shall stand frustrated. The discretion vested in the Courts is to be exercised in a judicial fashion and in the light of the facts of each case. Where the prosecution collects enough material to constitute reasonable grounds connecting the accused with the alleged offence, the Courts are always slow to accede to the request for bail.

9. In the present case, since no mala fide on part of the complainant has been shown by the applicant side, therefore, extraordinary relief in shape of pre-arrest bail sought by the applicants, against whom the allegation is of committing murder of an innocent person, cannot be acceded to. Hence, the accused are not entitled for extraordinary relief in shape of pre-arrest bail. The citations relied upon by the learned counsel for the applicants are distinguishable as facts and circumstances of cited cases are different from the facts and circumstances of present case. Therefore, the bail application, being devoid of its merits was declined and the applicants were taken into custody through short order dated 16.12.2021. These are the reasons for same. Since the case is pending for trial before the trial Court; hence, trial Court is directed to proceed with trial and conclude it within no time, under intimation this Court through Additional Registrar of this Court.

A copy of order be communicated to the trial Court through its Sessions Judge for compliance.

__________________

J U D G E

N.M.