IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl. Bail Application No.S-12 of 2022
|
Date of hearing |
Order with signature of Judge |
1.
For Orders on office objection.
2. For
hearing of bail application.
O R D E R.
21-02-2022.
M/s
Ali Gul Abbasi and Muhammad Zohabi Azam, advocates for applicants.
Mr.
Khan Muhammad Sangi, advocate for complainant.
Mr. Aftab Ahmed Shar, APG
for the State.
AMJAD ALI SAHITO J., Through instant Application applicants/accused Ali
Asghar and Awais Ali both bycaste Mirbahar seek pre-arrest bail in Crime No. 21/2021,
offence u/s 302, 311, 34 PPC registered at Police Station Baiji Sharif,
District Sukkur. Prior to this, their pre arrest bail application was turned
down by learned III-Additional Sessions Judge/(II-MCTC) Sukkur vide order dated
07-01-2022, hence instant bail application.
2. The
details and particulars of the FIR are already available in the bail
application and FIR, same could be gathered from the copy of FIR attached with
such application, hence, needs not to reproduce the same hereunder.
3. Learned
counsel for applicants/accused contended that applicants/accused are innocent
and have falsely been implicated in this case by the complainant with mala fide
intentions and ulterior motives; that case against co-accused Ali Akbar and
Saddam Hussain was tried, who have been acquitted by learned trial Court vide
judgment dated 23-10-2021 and role of applicants/accused is identical to that
of co-accused, who have been acquitted, therefore case against the
applicants/accused requires further inquire and they are entitled for
concession of pre arrest bail.
4. On the
other hand, learned APG for the State assisted by learned counsel for the
complainant have vehemently opposed for the grant and confirmation of bail to
the applicants/accused on the ground that they are involved in double murder
case with specific role and they also remained fugitive from law.
5. I have
heard learned counsel for the parties and have gone through the material
available on record.
6. Perusal
of FIR reveals that on 28-02-2021 ASI Bashir Ahmed Korai lodged the FIR
alleging therein that on the day of report he along with his subordinate staff
for patrolling. During patrolling, they received spy information that Ali
Asghar along with his brothers went to the house with intention to commit
murder of their sister Mst. Zainab by levelling allegation of Karap with Abbas
Mirbahar. On receipt of such information, the complainant party proceeded
towards the pointed place, where they saw and identified accused Ali Asghar and
Ali Akbar with pistols, Saddam Hussain Awais with guns. The accused persons on
seeing the complainant party, made straight fire shots with his pistol upon
Abbas Ali aged about 24/25 years, which hit him on his head. Accused Ali Akbar
made straight fire shots upon Ali Abbas, which hit on his left side of chest,
who raised cries and fell down and then accused tried towards their houses,
police party chased them and reached to their home, where accused Saddam
Hussain and Away made straight fires upon Mst. Zainab aged about 20/22 years,
which hit her on right side of her chest, abdomen and right side of leg and
fell down. The complainant party tried to arrest the accused persons, but they
made their escape good. The applicants/accused are nominated in the FIR with specific role, as they
duly armed with deadly weapons fired with their respective weapons upon Abbas
Ali and Mst. Zainab and committed their murder by levelling allegation of Karo
Kari. During
the course of investigation, the investigating officer has recorded the 161
Cr.P.C statements of PWs, who have fully supported the version of the
complainant. The ocular evidence found support from the medical evidence. Sufficient
material is available on record to connect the applicant/accused with the
commission of offence. At bail stage only tentative assessment is to be considered
and deeper appreciation of evidence is not warranted by law. Nothing has been
brought on the record to shown any ill-will or malafide on the part of the
complainant or IO of the case, which is basic requirement for grant of
pre-arrest bail. In this regard, I am fortified with the case law of Hon'ble
Supreme Court of Pakistan [2019 SCMR 1129] wherein the Hon'ble Supreme Court of
Pakistan has held as under:-
''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----the principles of judicial protection are being
faithfully adhered to till date, therefore, grant of pre-arrest bail
essentially requires considerations of malafide, ulterior motive or abuse of
process of law."
7.
It seems that the applicants/accused
are involved in the commission of murder of a young boy and girl on the matter
of honour killing, therefore their case scarily flaws within the prohibitory
clause of section 497 Cr.P.C. Moreover
the applicants/accused remained fugitive from law and were declared as
absconders in challan sheet. Subsequently two other accused faced the trial,
who are real brothers of the applicants/accused, hence there is no possibility
of unawareness about registration of FIR, arrest of their real brothers and
trial. Record reflects that against the applicants/accused was kept on dormant
file and NBWs were issued against them. The
conduct of the applicants shows that if they were innocent, they should have
immediately surrendered before the police and lead evidence in their defence,
but they chosen to remain absconders and after acquittal of co-accused,
surrendered before the trial Court. From this it appears reasonable grounds
about their participation in the commission of offence. In the similar
circumstances, the Honourable apex Court in the reported case of Awal Gul
(Supra) observed that "a fugitive from law and Courts loses some of the
normal rights granted by the procedural as also substantive law. It is also a
well-established proposition that unexplained noticeable abscondence
disentitles a person to the concession of bail notwithstanding the merits of
the case.
8.
In view of above discussion, learned
counsel for the applicants/accused has failed to make out a good case for grant
of pre arrest bail in the light of sub section (2) of Section 497 CrPC,
therefore, the applicants/accused are not entitled for any concession, hence
their pre arrest bail application is rejected and interim bail already granted to them vide order dated 14-01-2022
is hereby recalled. The facts and circumstances of the case law relied upon by
learned counsel for the applicant/accused are quite distinguishable, hence the
same are not helpful while deciding the instant Crl. Bail Application.
9.
Needless, to mention that the
observations made herein above are tentative in nature
and would not prejudice the case of either party at trial.
J U D G E
Nasim/P.A