IN THE HIGH COURT OF SINDH
CIRCUIT COURT, LARKANA
Criminal Bail Application 152 of 2021
Yasin Khan Babar
vs.
The State
For the Applicant Mr Shakeel Ahmed G. Ansari, Advocate along with Applicant
For the Prosecution / State : Mr. Aitbar Ali Bullo, DPG.
Date of hearing : 31.01.2022
Date of announcement : 31.01.2022
ORDER
Agha Faisal, J. The applicant seeks confirmation of pre-arrest bail, in respect of F.I.R. 222 of 2020, registered on 09.11.2020 before P.S. New Faujdari Shikarpur, pertaining to offences under Sections 365-B, 452 PPC.
2. Learned counsel submits that the applicant surrendered before the Court of the Sessions Judge, Shikarpur, however, vide order dated 01.04.2021, in Cr. Bail Application 305 of 2021, the applicant’s application for pre-arrest bail was dismissed, hence, the present proceedings. Vide interim order dated 12.04.2021, the applicant was admitted to interim pre-arrest bail and he seeks confirmation thereof.
3. After considering the submissions of the learned counsel and sifting[1] through the material placed before the court, reproduction whereof is eschewed herein[2], it is observed as follows:
a. The allegation levelled against the applicant is kidnapping, alongwith other co-accused, however, the record placed on file suggests that the alleged victim has sworn an affidavit claiming to have married a co-accused.
b. Learned counsel for the applicant pleaded entitlement to the concession of pre-arrest bail on the premise that the statements under Sections 161 and 164 Cr.P.C have been recorded and there is absolutely no reference to the applicant therein; the affidavit of marriage and nikahnama placed on file also contradicts the complainant’s version of there having been any kidnapping in the first place.
c. Learned D.P.G has read over the statements under Sections 161 and 164 Cr.P.C and articulates no cavil to the fact that applicant’s name finds no mention therein.
d. ASI Ijaz Ali present in Court submits that the complainant is himself absconder in certain cases, particulars whereof has been placed on record, hence it has not been possible to serve notice there upon.
e. Learned counsel has articulated a prima facie case for consideration of judicial refuge[3], envisaged to protect the innocent / vulnerable from the rigors of abuse of process of law and harassment[4]; so as to protect human dignity and honor[5] from the humiliation of incarceration, arguably intended for designs extraneous and mala fide.
f. It has been reasoned that the basic foundation of prosecution remains to be laid, hence, demonstrably qualifying the present case within the remit of Section 497(2) of the Code of Criminal Procedure 1898. Therefore, denial of anticipatory bail in the present circumstances, in an arguably fit case for consideration of post arrest bail[6], on a technicality would be unconscionable and unmerited[7].
4. In view of the foregoing, the interim pre-arrest bail granted to the applicant, vide order dated 12.04.2021, is hereby confirmed, upon the same terms as earlier prescribed and this bail application is disposed of accordingly.
5. It is considered pertinent to record that the observations herein are of a tentative nature and shall not influence and / or prejudice the case of either party at trial.
JUDGE
[1] Shoaib Mahmood Butt vs. Iftikhar Ul Haq & Others reported as 1996 SCMR 1845.
[2] Chairman NAB vs. Mian Muhammad Nawaz Sharif & Others reported as PLD 2019 Supreme Court 445; Muhammad Shakeel vs. The State & Others reported as PLD 2014 Supreme Court 458.
[3] Per Qazi Muhammad Amin J. in Ghulam Farooq Channa vs. The Special Judge ACE (Central I) Karachi & Another (Criminal Petition 169 of 2020) approving Hidayat Ullah Khan vs. The Crown reported as PLD 1949 Lahore 21 (Per Cornelius J.).
[4] Ajmal Khan vs. Liaqat Hayat & Another reported as PLD 1998 Supreme Court 97.
[5] Murad Khan vs. Fazle Subhan & Another reported as PLD 1983 Supreme Court 82.
[6] Muhammad Ramzan vs. Zafar Ullah & Another reported as 1986 SCMR 1380.
[7] Khalil Ahmed Soomro & Others vs. The State reported as PLD 2017 Supreme Court 730; Hassan Jameel Ansari & Another vs. National Accountability Bureau & Another reported as 2012 YLR 2809 (Division Bench Judgment of this Court).