IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Present;

Mr. Justice Amjad Ali Sahito

Cr. Bail Appln. No. S – 306 of 2021

Applicant : Atta Muhammad S/o Haji Jaffar Soomro

Mr. Nisar Ahmed Rind, Advocate

Respondent : The State

Through Mr. Shafi Muhammad Mahar, DPG for the State

Dated of hearing: 23.08.2021

Date of order : 23.08.2021

O R D E R

AMJAD ALI SAHITO, J – Through this bail application, the applicant/accused seeks pre-arrest bail in Crime No.41 of 2020 registered at Police Station Lakha Road, District Naushahro Feroze for an offence punishable under Sections 302, 148, 149 PPC. The bail plea of the applicant/accused has been declined by learned Additional Sessions Judge, Kandiaro vide order dated 04.05.2021.

2. The details and particulars of the FIR are already available in the bail application and FIR, therefore same could be gathered from the copy of FIR attached with such application, hence need not to reproduce the same hereunder.

3. It is contended by learned counsel that the applicant/accused is innocent and has falsely been implicated in this case by the complainant with malafide intention and ulterior motives; that the co-accused Arbab Ali and Taj Muhammad have been granted pre-arrest bail by this Court vide order dated 30.11.2020, whereas, the co-accused Noor Muhammad alias Nooro has also been granted post-arrest bail by the trial Court vide order dated 04.12.2020, therefore, the case of present applicant/accused is identical to that of co-accused, hence he prayed that on the rule of consistency the applicant/accused is also entitled to the grant of bail.

4. On the other hand, learned DPG for the State prayed for dismissal of instant bail application by contending that the name of the applicant/accused is specifically mentioned in the FIR with the role that he along with co-accused caused lathi blows to deceased Rajib Ali, who succumbed to the injures; that the offence with which the applicant/accused has been charged entails capital punishment, therefore, he cannot be absolved from the commission of the offence.

5. I have heard the learned counsel for the applicant/accused, learned DPG for the State and perused the record. Admittedly, the name of the applicant/accused is transpiring in the FIR with the specific role that he caused lathi blows to the deceased Rajib Ali, resultantly, who died due to injuries. The version as set-out in the FIR is fully supported by the witnesses in their 161 Cr.P.C statements. The ocular evidence finds support from the medical evidence. The applicant/accused has actively participated in the commission of the offence, therefore, he cannot be absolved at this preliminary stage. The offence with which the applicant/accused is charged entails capital punishment. Prima facie sufficient material is available on record to connect the applicant/accused with commission of the alleged offence.

6. The concession of pre-arrest bail cannot be allowed to an accused person unless the Court feels satisfied with the seriousness of the accused person’s assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local police but not a word about this crucial aspect of the matter is found as no mala fide is made on the part of the complainant to believe that the applicant/accused has been implicated in this case falsely. In this context, the reliance is placed to the case of ‘Rana Abdul Khaliq v. The STATE and others’ [2019 SCMR 1129]. Further, in addition to the above, I would like to mention that grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is a diversion of the usual course of law, arrest in cognizable cases; protection to the innocent being hounded on trump up charges through abuse of process of law, therefore, an applicant 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 the investigation.

7. In view of the above, the applicant/accused has failed to bring his case for further inquiry as envisaged under subsection (2) of Section 497, Cr.P.C. Consequently, the interim pre-arrest bail granted by this Court to the applicant/accused vide order dated 28.05.2021 is hereby recalled and the bail application is dismissed.

8. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial Court while deciding the case of the applicant on merits.

Judge

ARBROHI