ORDER
SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Bail
Application No.S-431 of 2021
Date |
Order with signature of Judge |
Applicants: Fateh Muhammad
and others
through M/s Ghulam Rasool
Narejo
and Nazir Ahmed Junejo,
Advocates
State: Through
Mr. Aftab Ahmed Shar, APG
Assisted
by Mr.Jalaluddin M.Akbar
Chandio,
Advocate for brothers/LRs
of deceased Khan Muhammad
Date of
hearing: 30.08.2021
Dated of
order: 30.08.2021
O R D E R
Zulfiqar
Ali Sangi, J: Applicants/accused Fateh Muhammad son of Mange
Dino, Ghulam Sarwar son of Mahboob Ali and Ghulam Mustafa son of Mahboob Ali
all by caste Narejo, are seeking pre-arrest bail in FIR No.126/2021, registered
at Police Station B-Section Khairpur, under sections 302, 311 and 148 PPC.
Their same plea was declined by learned Additional Sessions Judge-I/(MCTC) Khairpur, vide order dated 26.06.2021. Hence, they
approached to this court for pre-arrest bail.
2. Briefly
the facts of the prosecution case are that on 25.05.2021, a police party of PS
‘B’ Section Khairpur, headed by HC Ghulam Rasool Jhamat during patrolling
received information that from the house of Naseer Muhammad Narejo cries of `murder-murder`
are coming to which they went there and saw five persons who were identified as
Naseer Muhammad with lathi, Fateh Muhammad with hatchet, Ghulam Sarwar with
lathi, Ghulam Mustafa with lathi and one unidentified person, out of whom accused
Naseer Muhammad Narejo was causing wooden stick blows to a male and a female
while remaining accused were standing
over there and then, seeing the police party they went away. The male and female who sustained injuries on
their heads disclosed their names as Khan Muhammad and Mst. Latifan wife of
Naseer Muhammad. They further disclosed that the above named accused persons
have leveled allegation of karap against them. Thereafter they both succumbed
to injuries and passed away. Hence such FIR was registered.
3. Learned
counsel for the applicants has contended that the applicants have falsely been implicated
by the police with malafide intention and ulterior motive. He next contended
that the incident is night time incident and accused were alleged to have been identified
on the bulb light which is weakest type of evidence, as such false implication
of the accused cannot be ruled out. He also contended that mere presence
of the applicants has been shown and no specific role has been assigned to
them. He further contended that during investigation the applicants were
declared innocent and placed their names in column-II of the challan, however, they
were joined by the learned Magistrate. He
prayed for confirmation of interim pre-arrest bail granted to the applicants.
4. Learned
Additional Prosecutor General, assisted by counsel for the brother/LRs of
deceased Khan Muhammad opposed the confirmation of pre-arrest bail on the
ground that the applicants were nominated in the FIR, who shared their common
intention and the applicants are involved in a heinous offence of double murder
which carries capital punishment. They submit that no malafide or ill-will is
suggested against the police and in absence of any malafide they are not
entitled for the relief claimed.
5. I have heard the learned counsel for the parties and perused the material
available on record with their able assistance.
6. Per FIR, active role has been
assigned only to co-accused Naseer Muhammad but no active role has been
assigned to the present applicants and mere their presence at the spot has been
shown, as according to contents of FIR co-accused Naseer Muhammad Narejo was
causing wooden stick blows to deceased while the present applicants having
lathis and hatchet were present over there,
therefore, question of vicarious liability requires further inquiry. Further it
is also matter of record that during investigation the applicants have been
declared innocent by the I.O and their names were kept in column-II of the
challan, however learned Magistrate did not agree
with the police report and had taken cognizance of the offence.
7. The conduct of complainant who is
police official in the present case is very doubtful which reflects from the
contents of FIR in which he stated that he saw accused persons were available
with their respective weapons and in presence of police party they started
blows upon the deceased persons which shows negligence on the part of police personals
available there, they did not take efforts to save the life of two persons who were
killed in their presence. The investigation officer has also not conducted the
investigation on this aspect of the case and the same requires further
investigation.
8. I would like to point out that extra-ordinary relief of pre-arrest
bail is meant for innocent persons to save them from humiliation and disgrace
from the hands of police. The purpose of this remedy is to protect liberty and
reputation of citizens, particularly in a case where the circumstances, in
which the case seems to be a case of further inquiry on the basis of material placed before the Court. The power to grant bail
under section 498, Cr.P.C. is not additional to or independent to section 497, Cr.P.C., and even while granting pre-arrest bail the
provisions contained under section 497, Cr.P.C. are also to be kept in mind.
However, the grant of bail or its refusal is essentially a matter of discretion
to be exercised judiciously and not arbitrarily and the facts
of each and every case is to be considered separately and independently.
Reasonable and plausible ground must exist for grant of bail before arrest. The
concept of pre-arrest bail was developed on three presumptions, (a) the
accused is presumed to be innocent till he is found guilty, (b) the
accused should have a right to prepare his defence and prove his innocence
before the trial Court and (c) the accused should not be
punished before the findings of his conviction rendered by the Court.
9. It is settled principal of law that for
making out a prima-facie case, for grant of pre-arrest bail, accused has to
show some mala fide on the part of the complainant and the investigating
agency, motivated by caprice and ulterior motive to humiliate and disgrace the
accused person in case of arrest however, at bail stage, except in very rare
cases, it is difficult for an accused person to furnish tangible proof about
the element of mala fide or foul play on the part of the complainant or the
arresting agencies therefore, the Court has to look at the materials available
on record and to draw inferences there from about the mala fide or ulterior
motive, on account of which the intended arrest of the accused is motivated.
10. It is also a settled principal of law
that deeper appreciation of the evidence is not permissible while deciding the
bail plea of the accused and the same is to be decided tentatively on the basis
of material available on the record. From tentative assessment of the material
as has been discussed above, I am of the opinion that the applicants have
made out case for confirmation of bail. Accordingly, instant bail application
is allowed and ad-interim pre-arrest bail earlier granted to the applicants
vide order dated 12.07.2021 is hereby confirmed on the same terms and
conditions.
11.
The observations made hereinabove are tentative in nature only for the purpose
of deciding the instant bail application, which shall not, in any manner,
influence the learned Trial Court at the time of final decision of the subject
case.
J U D G E