ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA                                   

3^rd Crl. Bail Appln.  No. S- 179  of 2023.

DATE  OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

1. For orders on office objection ‘A’.

2. For hearing of bail application.

30.10.2023.

Mr. Athar Abbas Solangi, advocate for the applicants along with applicants (on bail).

                        Mr. Muzaffar Ali Wadhio, advocate for the complainant.

                        Mr. Aitbar Ali Bullo, D.P.G, Sindh.

ORDER

MUHAMMAD SALEEM JESSAR, J.-  Applicants Jahangir and Alamgir, both sons of Allah Dino, seek pre arrest bail in Crime No.161/2022, registered at Police Station Kashmore District Kandhkot for offence punishable under sections 302, 34, PPC. After thorough investigation, the case has been challaned by the police which is now pending for trial before the Court of learned Additional Sessions Judge Kandhkot vide Sessions Case No.30/2023 re-State v. Jahangir and another.

2.                    The applicants before this had preferred two consecutive bail applications of like nature in which one was dismissed in default and the other one was on merits, hence instant bail application has been maintained.

3.                     The crux of prosecution case as unfolded by the complainant Muhammad Shuaib in his FIR are that the applicants had allegedly committed murder of his sister by causing kicks and fists blows due to which the injured/ deceased lady had sustained a severe injury inside the body, therefore, was shifted to Shaikh Zaid Hospital, Raheem Yar Khan (Punjab), where she succumbed to grievous cum hidden injuries and to such effect present FIR was lodged.

4.                     Learned counsel for the applicants contends that the applicants are innocent and they have been falsely implicated in this case as the lady died due to natural death and no medical evidence has been brought on record through which it could be deduced that she was murdered at the hands of the present applicants. He further went on to say that the applicants have been roped in this case due to matrimonial dispute with the complainant party hence false implication of the accused cannot be ruled out. He further submitted that in the light of available material, the case against the applicants requires further enquiry, therefore, by granting this application, they may be admitted to pre-arrest bail.

5.                     On the other hand, learned D.P.G appearing for the State opposed the bail application on the ground that an innocent and helpless lady was severely beaten and brutally murdered, therefore, she lost her precious life. He next submitted that no enmity or mala fide on the part of the complainant party has been urged by the accused through which it can be presumed that the applicants have been implicated falsely. He therefore, submitted that basic ingredients for grant of pre arrest bail are lacking in this case, hence the applicants are not entitled for an extra ordinary relief. Learned D.P.G while referring the order dated 16.02.2023 passed by learned 1^st Additional Sessions Judge, Kandhkot, in second bail application the applicants had not disclosed the factum as well as fate of their earlier bail application bearing No.14 of 2023 which was dismissed in default on 26.01.2023, hence by concealing such fact had violated the mandatory directions issued by the Hon’ble Supreme Court of Pakistan in case of The State through Advocate General, N.W.F.P v. Zubair and 4 others  (PLD 1986 Supreme Court 173), hence the counsel appearing for them before the trial Court had attempted to deceive the Court below. He therefore, submitted that by dismissing the bail application of the applicants they may be taken to custody and remanded to jail so that trial could be commenced and concluded within shortest possible time.

6.                    Learned advocate for the complainant by adopting arguments advanced by learned D.P.G also opposed the bail application.

7.                     Heard learned counsel for the applicants, learned D.P.G for the State as well as learned counsel for the complainant and perused the material available on record.

8.                    The main contention of learned counsel for the applicants was that ocular version did not get support from the medical evidence hence the applicants cannot be held responsible for causing murder of the deceased is concerned, it carries no weight on the ground that it is deeper appreciation of evidence which as per settled law is un-warranted at bail stage and that can only be evaluated and assessed by the trial Court after recording evidence of the prosecution witnesses.

9.                    Bare perusal of the F.I.R reflects that, the applicants have been assigned active role of causing and kicks blows to deceased lady; resultantly an innocent lady was deprived of her precious life and the applicants have failed to pin point even a single circumstance which would show that the prosecution had any animosity or ill will against them which may warrant mala fide on the part of the prosecution. The extra ordinary relief in a heinous offence cannot be granted frequently more particularly when no mala fide on the part of the prosecution has been brought and mere saying a word that the applicants are innocent is not sufficient to discard the evidence collected by the prosecution during investigation.  In this context, reference can be had from the case of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427), wherein Hon’ble apex Court has given the guidelines for pre-arrest bail and it has been held as under:

“9.       Ever since then, the said interpretation so made, the said powers so found and the parameters so prescribed, have been regularly and repeatedly coming up for scrutiny by the Superior Courts including this Court. But each time the matter was re-examined, the same was only re-affirmed. The said concept as it was initially propounded; as it developed and the same stands today, may be summarized for the benefit of us all as under : 

(a)  grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives.

(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail.

(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and That there were, in fact, sufficient grounds warranting further inquiry into his guilt.

(d) not Just this but in addition thereto, he must also show that his arrest was being Sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to B disgrace and dishonor him.

(e) Such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been fugitive at law; and finally that;

(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance approach the Court of first instant i.e. the Court of Session, before petitioning the High Court for the purpose.”               

10.                  Similar view has been taken by Hon’ble Apex Court in a case of Gulshan Ali Solangi and others v. The State through P.G Sindh (2020 SCMR 249).

11.                   It seems that the applicants after commission of the offence, remained fugitive from law; if they were innocent, they must had immediately surrendered before the police to put their version/ defence before investigation agency, but they chosen to remain absconders. It is well settled law that “fugitive from law and Courts loses some of the normal rights granted by the procedural as well substantive law”, and that unexplained noticeable abscondence disentitles a person to concession of bail notwithstanding the merits of the case.   Reference in this regard can be had from case of Awal Gul v. Zawar Khan and others (PLD 1984 SC 402).

12.                  In view of the law laid down by the Hon’ble Apex Court and in the circumstances of the case in hand, prima facie, it appears that sufficient material is available on the record to connect the applicants with the commission of the offence, alleged against them falling within the prohibitory clause of section 497 Cr.P.C, therefore, I am of the considered view that the applicants are not entitled for the grant of extra ordinary concession in shape of pre arrest bail. Accordingly, this bail application was dismissed by my short order dated 30.10.2023, whereby the applicants were taken into custody. These are the reasons for the same.

13.                   The observations made herein above are tentative in nature which shall not prejudice case of either party at the trial.

                                                       Judge

M.Y.Panhwar/**