ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-125 of 2022

 

Date

               Order with signature of Judge

           

 

Applicants:                                 Gul Hassan and others

                                                  through M/s Mehfooz Ahmed Awan

                                                  and Ghulam Murtaza Korai, Advocates

 

 

State:                                         Through Syed Sardar Ali Shah Rizvi,

                                                  Additional Prosecutor General

 

Date of hearing:                         01.04.2022

 

Dated of order:                           01.04.2022

                                                 

O R D E R

 

Zulfiqar Ali Sangi, J:  Applicants/accused Gul Hassan Soomro, Hadi Bux Mangi, Qurban Ali Korai, Ali Hyder and Abdul Shakoor are seeking their pre-arrest bail in FIR No.11/2021, registered at Police Station Jhangro, District Sukkur, under sections 353, 324, 34 PPC. Their same plea was earlier declined by learned Additional Sessions Judge-I/ MCTC-I Sukkur, vide order dated 14.03.2022.  

2.                As per prosecution story an encounter had taken place between the police party and culprits wherein a student of Sindh University namely Irfan Jatoi has died. Thereafter FIR was registered, investigated and subsequently re-investigated by police of another District  and a report under “A” class was submitted which the learned Magistrate did not accept and had taken cognizance against the police officials vide order dated 07.04.2021 and issued summons against the said police officials allegedly involved in the encounter. The applicants instead of approaching the Magistrate for furnishing bonds in lieu of summons had approached the Sessions Court for pre-arrest bail and same was declined by learned Additional Sessions Judge-I/MCT-I, Sukkur as stated above.

3.                Learned counsel for the applicants have contended that there is no direct evidence against the present applicants in respect of allegedly false encounter nor anybody approached the court against the police officials that the police officials have committed the murder of the deceased Irfan Jatoi in a fake encounter. They also contended that as per investigation the deceased was found to be involved in number of cases therefore the case against applicants/accused is highly doubtful and in these circumstances they are entitled for confirmation of interim pre-arrest bail already granted to them.

4.                Learned Additional Prosecutor General, conceded for confirmation of pre-arrest bail.

 

5.                I have heard the learned counsel for the parties and perused the material available on record with their able assistance.

 

6.                          It is observed that while taking cognizance of offence learned Magistrate issued summons against the applicants and the applicants instead of furnishing bonds as required under section 91 Cr.P.C had approached the Session Court of their pre-arrest bail and the same was declined. The Honourable Supreme Court in case of Sarwar and others v. The State and others (2014 SCMR 1762) while discussing the issue declared some of the Judgments on the law point involve in this matter as against the law and some of the Judgments in accordance with law in para No. 30 and 31 which reads as under:-

“30.       As a result of the discussion made above we hold that the law propounded by the Lahore High Court, Lahore in the case of Mazhar Hussain Shah v. The State (1986 PCr.LJ 2359) and by this Court in the cases of Reham Dad v. Syed Mazhar Hussain Shah and others (Criminal Appeal No. 56 of 1986 decided on 14-1-1987) and Syed Muhammad Firdaus and others v. The State (2005 SCMR 784) was a correct enunciation of the law vis-a-vis the provisions of sections 204 and 91, Cr.P.C. and it is concluded with great respect and veneration that the law declared by the High Court of Sindh, Karachi in the case of Noor Nabi and 3 others v. The State (2005 PCr.LJ 505) and by this Court in the case of Luqman Ali v. Hazaro and another (2010 SCMR 611) in respect of the said legal provisions was not correct. As held in the cases of Mazhar Hussain Shah, Reham Dad and Syed Muhammad Firdaus (supra) the correct legal position is as follows:--

 

(i)         A process is issued to an accused person under section 204, Cr.P.C. when the court taking cognizance of the offence is of the "opinion" that there is "sufficient ground" for "proceeding" against the accused person and an opinion of a court about availability of sufficient ground for proceeding against an accused person cannot be equated with appearance of "reasonable grounds" to the court for "believing" that he "has been guilty" of an offence within the contemplation of subsection (1) of section 497, Cr.P.C. Due to these differences in the words used in section 204 and section 497, Cr.P.C. the intent of the legislature becomes apparent that the provisions of section 91, Cr.P.C. and section 497, Cr.P.C. are meant to cater for different situations.

 

(ii)        If the court issuing process against an accused person decides to issue summons for appearance of the accused person before it then the intention of the court is not to put the accused person under any restraint at that stage and if the accused person appears before the court in response to the summons issued for his appearance then the court may require him to execute a bond, with or without sureties, so as to ensure his future appearance before the court as and when required.

 

(iii)       If in response to the summons issued for his appearance the accused person appears before the court but fails to submit the requisite bond for his future appearance to the satisfaction of the court or to provide the required sureties then the accused person may be committed by the court to custody till he submits the requisite bond or provides the required sureties.

 

                                                 We may add that

                       

(iv)       If the process issued by a court against an accused person under section 204, Cr.P.C. is through a warrant, bailable or non-bailable, then the accused person may be under some kind or form of restraint and, therefore, he may apply for his pre-arrest bail if he so chooses which may or may not be granted by the court depending upon the circumstances of the case but even in such a case upon appearance of the accused person before the court he may, in the discretion of the court, be required by the court to execute a bond for his future appearance, with or without sureties, obviating the requirement of bail.

 

31.       Having declared the correct legal position in respect of the provisions of sections 204 and 91, Cr.P.C. we direct the Office of this Court to fix the titled appeals and petitions for hearing before appropriate Benches of the Court for their decision on the basis of their respective merits in the light of the law declared through the present judgment.

 

7.                Admittedly the Honourable Supreme Court in the above case has decided the controversy arising out of a direct complaint and the situation of the present case is of the same nature as while taking cognizance of the offence by the learned Magistrate summons were issued, therefore, the applicants are also entitled to the benefit of the said dicta laid down in the case of Sarwar (supra). The contention of learned counsel for the applicants has some weight as at this stage when the pre-arrest was declined by the court bellow, if the applicants would have approached the trial court and surrendered themselves for furnishing bonds as required by section 91 Cr.P.C they could have been taken into custody on the ground that their pre-arrest bail application was dismissed. Result thereof this application for pre-arrest bail is decided on merits. 

 

8.                Record reflects that there is no direct evidence against the applicants in respect of fake encounter nor any witness has been examined during investigation in this respect. However, the material collected during an inquiry on the basis of which cognizance has been taken and summons were issued the same will only be considered at the time of trial by the trial court. Learned Additional Prosecutor has pointed out that during the investigation notice has been issued to brother of deceased Irfan Jatoi namely Ghulam Nabi which was replied through his counsel Mr. Shahid Soomro on 23.03.2021 in which it is stated that he will not proceed with the matter, however he will join judicial enquiry. All these facts made the case of applicants one of further enquiry entitling them for the concession of bail. Resultantly interim pre-arrest bail already granted to the applicants on 18.03.2022 is hereby confirmed on the same terms and conditions.

 

9.              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