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