IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No. 843 of
2023
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Amjad
Ali Sahito
20.11.2023
Mr.
Zulfiqar Ali advocate along with applicant/accused
Ms. Rahat Ahsan Addl.
P.G
-.-.-.-.-.-.-.-.
Naimatullah Phulpoto,
J.- Applicant/accused
Muhammad Asif Khan seeks pre-arrest bail in Crime No. 22 of 2023 for offences
under Sections 384/385/386/392/397/34 PPC read with Section 7 ATA of 1997 registered
at PS Shah Latif, District Malir,
Karachi. Prior to this, applicant/accused applied for the same relief before
Anti-Terrorism Court No.II Karachi, it was rejected
vide order dated 08.03.2023.
2. Learned advocate for applicant/accused mainly
contended that there was delay of 26 days in lodging of the FIR for which no
plausible explanation has been furnished; that prosecution story is false; that
several false FIRs have been registered against the applicant/accused by the
police; that during investigation, amount of Bhatta
was not recovered from him. Lastly, it is argued that the applicant/accused is
entitled for grant of pre-arrest bail.
3. Additional Prosecutor General Sindh argued
that complainant Aijaz before lodging of the FIR had
approached DIG East Karachi but action was not taken by him against the
applicant/accused then he lodged FIR; that complainant runs construction work
and Rs.200,000/- Bhatta was demanded by the
applicant/accused out of which Rs.15000/- were paid by the complainant to the
applicant/accused. Addl. P.G further submits that applicant is habitual of
committing such type of offences and 36 FIRs of the same nature have already
been registered against him; that applicant/accused did not join the
investigation, as such, recovery could not be made from him. Lastly, it is
argued that element of malafide on the part of
complainant and police is missing in this case and prayed for dismissal of application
for pre-arrest bail.
4. Heard learned counsel for the parties
and perused the relevant record.
5. The contents of FIR No. 22/2023
registered at P.S Shah Latif reveal that complainant
runs construction work; Applicant/accused had demanded Bhatta
of Rs.200,000/- from him, it is alleged that Rs.15,000/- were paid by the
complainant, for the rest amount, complainant was pressurized through Whatsapp calls. On 11.12.2022, it is alleged that
complainant was picked up by the accused in his car and was maltreated for
payment of remaining Bhatta amount. Addl. P.G has
submitted that 36 FIRs have already been registered against the
applicant/accused of the same nature. Advocate for the applicant/accused did not
deny the same but raised plea that those FIRs are false. Addl. P.G submitted
that applicant/accused after obtaining interim pre-arrest bail failed to join
the investigation. Trial Court has also reported that after grant of interim
pre-arrest bail, applicant/accused did not appear before the trial Court on
various dates such as 05.08.2023, 18.08.2023 and 02.09.2023. Alleged offences
fall within the prohibitory clause. As regards to the delay in lodging of the
FIR is concerned, it is sufficiently explained by the complainant in the FIR. It is well settled that at bail stage only tentative
assessment is to be undertaken and no deeper appreciation is permissible. In
any event, grant of pre-arrest
bail is an extraordinary remedy in the criminal jurisdiction, grant of
pre-arrest essentially requires consideration of malafide,
ulterior motive or abuse of process of law, but in the present case no malafide or ulterior motive on the part of the complainant
or police has been alleged. In the case of Rana
Abdul Khaliq vs. The State and others (2019 SCMR
1129), the Apex Court has held as under:
''2. 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. Ever since
the advent of Hidayat Ullah
Khan's case (PLD 1949 Lahore 21), the principles of judicial protection are
being faithfully adhered to till date, therefore, grant of pre-arrest bail
essentially requires considerations of mala fide, ulterior motive or abuse of
process of law, situations wherein Court must not hesitate to rescue innocent
citizens; these considerations are conspicuously missing in the present case.
The case referred to by the learned Judge-in-Chamber unambiguously re-affirms
above judicial doctrine and thus reliance being most inapt is unfortunate to
say the least.”
6. Apart
from above, Addl. P.G has also submitted that applicant/accused did not join
the investigation.
7. Prima facie, there are
reasonable grounds for believing that the applicant has committed the alleged
offences. No case for grant of pre-arrest bail to the applicant is made out. Resultantly,
instant bail application for pre-arrest bail is dismissed, interim pre-arrest
bail already granted to the applicant/accused is hereby recalled.
8. Needless to mention here that the
observations made herein above are tentative in nature, the trial Court shall
not be influenced by the same while deciding the case of the applicant/accused
on merits.
JUDGE
JUDGE
Wasim ps