ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Bail Application No.555 of 2010. _____________________________________________________
Date Order with signature of Judge
For hearing
.10.2010.
Mr. Wasique Ahmed Kehar, Advocate for the Applicant alongwith the Applicant
Mr. Mian Taj Muhammad Keerio, Advocate for the Complainant
Mr. Muhammad Iqbal Awan, A.P.G.
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The applicant approached this Court for pre-arrest bail in a Crime No.51/2010 registered under Section 302/120-B/147/148/149 PPC read with Section 324 Q & D Ordinance at P.S. Hussainabad Hyderabad. On 01.06.2010 without touching the merits of the case, the applicant was admitted to ad-interim pre-arrest bail by this Court subject to furnishing surety in the sum of Rs.2,00,000/- (Rupees Two Hundred Thousand) and P.R bond in the like amount to the satisfaction of the Nazir of this Court. Notices were issued to the learned A.P.G as well as complainant. Thereafter the matter came up on 10.06.2010 for confirmation of bail or otherwise.
It is inter alia contended by the learned counsel that the applicant has been falsely implicated in the instant crime in place of some other person i.e. Majeed Siyal nominated in the FIR, whereas in the challan his name is mentioned as Abdul Majeed @ Majeed Siyal son of Abdul Rahim Siyal. Per learned counsel, the present applicant is Abdul Majeed son of Abdul Baqi. Per learned counsel, there is unexplained delay of three days in lodging the FIR, which has been registered after consultation and the present applicant has been involved in the instant crime on the basis of political rivalry. Learned counsel further submitted that on the date of alleged incidence i.e. 23.4.2010 allegedly taken place at Hyderabad, the present applicant was admitted in Shaheed Mohtarma Benazir Bhutto Medical University (SMBBMU) Chandka Medical College, Hospital Larkana, wherein as per record of hospital, he was admitted on 21.4.2010 and was discharged on 25.4.2010 and was under treatment of Professor Saeed Ahmed Sangi. Learned counsel further argued that on perusal of memo of recovery and inspection of the place of incidence it appears that preliminary inquiry was conducted by the police on the pointation of complainant and the M.L.O Report was called and after consultation, the instant FIR has been lodged with the unexplained delay of more than three days. Per learned counsel, all the prosecution witnesses are brothers and relatives of the deceased. Learned Counsel further states that no case is made out against the applicant/accused nor any connecting material is available against the applicant who has been falsely implicated in the instant crime, therefore, the applicant is entitled to concession of bail. In support of his contention, learned counsel has placed reliance on the following cases:
(1) Kouro and another v. The State 2004 Y.L.R 2434
(2) Malik Muhammad Saleheen and others v. Arshad Siddiq and 2 others 1997 SCMR 1829.
(3) Ali Akbar v. The State 1991 M.L.D 2208
(4) Ghulam Murtaza Qureshi v. The State 1990 P.Cr.L.J 323
(5) Manzoor and another v. The State 1986 P.Cr.L.J 460
(6) Yousuf Masih v. The State 2010 P.Cr.L.J 392
(7) Muhammad Hassan v. The State 2010 P.Cr.L J. 572
(8) Ghulam Murtaza v. The State 2010 P.Cr.L.J 461
(9) Nooruddin and another v. The State 2005 MLD 1267
(10) Sultan Ahmed Siddiqui v The State PLD 2010 Karachi 110
(11) Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427
(12) Ch. Basharat Karim v. Muhammad Ishfaq Chandoor and another 2007 SCMR 1546
Conversely, learned counsel for the complainant has opposed the grant of bail, as according to the learned counsel, the applicant/accused is not entitled to pre-arrest bail. Learned counsel further stated that the explanation of delay is given in the FIR, whereas specific role is also assigned by the complainant whereby six persons including the present applicant/accused has been nominated in the F.IR. Per learned counsel, the plea of alibi is of no consequence when there are eye-witnesses of the alleged crime. In support of his contention learned counsel has placed reliance on the following cases:
(1) Rana Muhammad Arshad v. Muhammad Rafique and another
PLD 2009 SC 427
(2) Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68
(3) Meeral and another v. The State 2010 P.Cr.L.J 1300
(4) Waqas Ahmad and another v. The State 2005 SCMR 1496
(5) Masood Ahmed alias Muhammad Masood v. The State
2006 SCMR 933
Learned APG has also opposed the grant of pre-arrest bail and supported the arguments of the learned counsel for the complainant.
I have heard both the learned counsel as well as APG and perused the record. The instant bail application was taken-up for hearing at the principle seat at Karachi pursuant to an order passed by the Hon’ble Chief Justice on an application filed by the applicant under Rule 7 of the High Court Benches Rules 1987. Applicant approached this Court seeking bail before arrest in the instant crime on the ground that the applicant is being harassed by the police at the instance of the complainant with whom there is political rivalry in connection with F.I.R 51/2010 under Section 302/120-B/147/148/149 PPC read with Section 324 of Q & D Ordinance registered at P.S.Hussainabad Hyderabad inspite of the fact that neither the name of the applicant finds mention in the FIR nor even the father’s name of the applicant is the same as mentioned in the challan submitted by the police in Court. As per CNIC of applicant/accused filed alongwith bail application his name mentioned as Abdul Majeed son of Abdul Baqi, whereas the accused nominated in the FIR is Majeed Siyal. The ground of unexplained delay of three days in registration of FIR and plea of ali-bi have also been argued as grounds for grant of pre-arrest bail. It further appears that before registration of FIR after the delay of three days, preliminary investigation was conducted by the prosecution by associating the brother of the deceased whereby the place of incidence was visited, M.L.O report was called and the FIR was registered after consultation. Place of incidence has been mentioned near WAPDA Colony, Hyderabad, whereas the applicant/accused who claims to be a heart patient, was stated to be admitted at Chandka Medical College, Larkana w.e.f 21.4.2010 to 25.4.2010, whereas the alleged incidence is of 23.4.2010. It further appears that the complainant and the brother of the accused having remained for a considerable period alongwith the police officials in connection with the alleged crime did not lodged the FIR The explanation for delay in lodging the FIR does not appear to be convincing as the complainant could not explain as to under what circumstances he was prevented from promptly lodging an FIR. The incorrect name in the FIR coupled with incorrect parentage of the applicant also creates doubt to the identity of the applicant/accused. Further more plea of alibi duly supported by documentary evidence cannot be brushed aside under the facts and circumstances of this case.
In the case reported as Malik Muhammad Saleheen and others v. Arshad Siddiq and 2 others 1997 SCMR 1829, the Hon’ble Supreme Court has held that plea of alibi can be gone into for the purposes of grant or refusal of bail.
In the case reported as Ghulam Murtaza Qureshi v. The State 1990 P.Cr.L.J, Bench of this Court has held that mere mention of name of a person in FIR would not justify rejection of his prayer for anticipatory bail without considering other ingredients required to be taken into the view in this context. In the instant case plea of alibi was also considered as one of the grounds for grant of anticipatory bail. Similar ground was also approved in the case of Manzoor and another v. The State 1986 P.Cr.L.J 460.
In the case of Ghulam Murtaza v. The State reported as 2010 P.Cr.L.J 461, Division Bench of this Court has held in a case under Section 302/120-B read with Section 324/34 PPC that single circumstance of doubt is sufficient to make the case doubtful. Reference in this regard placed in the case of Tariq Pervez v. The State 1995 SCMR 1345 and Ghulam Qadir and 2 others v. the State 2008 SCMR 1221, the Hon’ble Supreme Court has held that for the purpose of benefit of doubt to an accused, more than one infirmity is not required. Single infirmity creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful. In the famous judgment of the Hon’ble Supreme Court in the case of Rana Muhammad Arshad v. Muhammad Rafique and another reported as PLD 2009 SC 427, the Hon’ble Supreme Court while providing guidelines for grant of pre-arrest bail has held that in a proper case high Court has the power under Section 498 Cr.P.C to grant bail to the applicant/accused. The Hon’ble Supreme Court has provided following guidelines for consideration of bail before arrest:-
(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 of post-arrest bail;
(c) bail before arrest can not 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 disagree and dishonour 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 a 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.
On perusal of the record and tentative assessment of the material available as well as the ratio of the case-laws relied upon by the learned counsel for the applicant, it appears to be a case of reasonable doubt and further inquiry, whereas mentioning of incorrect name and father’s name in the FIR and challan respectively also gives reasonable ground for concession of pre-arrest bail. Reason for approaching directly and the anticipated humiliation on account of political rivalry as explained in the application filed under Rule 7 of High Court Benches Rules 1987, found favour with the Hon’ble Chief Justice while granting the same. Keeping in view the entire facts it appears that applicant/accused has made out a case for grant of pre-arrest bail. Accordingly, pre-arrest bail granted to the applicant/accused is hereby confirmed in the same terms and conditions as mentioned in the order dated 01.06.2010 passed by this Court while granting pre-arrest bail.
It is clarified that if the applicant/accused misuses the concession of bail, the trial Court shall be at liberty to proceed against the applicant/accused as per law, who shall attend the trial Court regularly.
Needless to observe that the observations made hereinabove are tentative in nature and trial court shall not be prejudiced by any such observations and shall decide the case strictly on merits keeping in view the evidence available on record.
J U D G E