ORDER SHEET.
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Present:
Mr. Justice Shahid Anwar Bajwa &
Mr. Justice Muhammad Ali Mazhar
Cr. Bail Application No. D- 461 of 2011.
For hearing.
Muhammad Arshad……….…..…………………………….Applicant.
State…………...………….…….…….………….………..Respondent.
For the Applicant: Mr. Zulfiqar Ali Sangi along with applicant.
For the Complainant: Mr. Noor Mohammad Soomro.
For the State: Mr. Zulfiqar Ali Jatoi, Deputy Prosecutor General.
Date of hearing: 18th January, 2012.
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Muhammad Ali Mazhar J., The applicant has applied pre-arrest bail in Crime No. 41 of 2011, Police Station Mehrabpur, lodged under Sections 302, 324, 337-H(2), 452, 149, PPC and Section 7 A.T.A.
2. On 25.5.2011, the applicant was granted interim pre-arrest bail by this Court.
3. The brief facts are that on 12.3.2011, complainant Dr.Zarina lodged FIR that she is a doctor and her house and clinic, both are situated in Ward No.2 of Mehrabpur town. On 12.3.2011, she was present in her clinic, while her husband Lal Bux alongwith his five friends was sitting in the room (Names of friends are mentioned in the FIR). At about 11-30 she heard the sound of motorcycles outside the clinic and then saw that eight persons armed with KKs with open faces came inside the house including the applicant, whose name is appearing at serial No.6 of the FIR, while the names of six other persons are also mentioned in the FIR with two unidentified accused. Complainant further stated that all the accused persons stated Lal Bux had got registered FIR against Shabir Ahmed Kamboh regarding false cheque and that they would occupy plot and would murder them. While saying so, accused Anwar Khushk, Haji Muhammad Sadiq and Shabir Ahmed Kamboh with intention to commit murder fired burst of KKs upon complainant’s husband Lal Bux which hit on his chest, neckarms and other parts of body who fell down while raising cry. Accused Arshad Wattoo (applicant), Riaz Tatlo and one unknown accused fired bursts of KKs upon constable Salamat Ali Umrani which hit on his chest and above right eye. Accused Mevo Khushk and one unknown accused fired straight burst of KKs with intention to commit murder of constable Suhrab Khan Chandio and Foji Naseer Ahmed Sahto. Constable Suhrab Khan Chandio sustained fire arm injury on his chest and arm whereas Foji Nazeer Ahmed Sahto sustained a fire arm injury on his leg. Complainant’s husband Lal Bux and constable Salamat Ali expired while constable Suhrab Khan Chandio and Foji Nazeer Ahmed were severally injured.
4. The learned counsel for the applicant argued that allegations against the present applicant and co-accused Riaz Tatlo and one unknown accused is that they fired bursts upon deceased constable Salamat Ali Umrani, but the complainant failed to disclose any specific allegation against the applicant. It is also not clear from the FIR who caused fatal injury to the deceased Salamat Ali, therefore, case of the prosecution at least against the applicant is doubtful. He further argued that according to contents of the FIR, many people came at the place of incident but the complainant failed to produce any independent witness and all the witnesses of the case are the friends of complainant’s husband, therefore, false implication of the applicant cannot be ruled out. It was further averred by him that husband of the complainant Lal Bux murdered the brother of applicant, namely, Muhammad Akhtar Wattoo and FIR No.181 of 2010 was got registered against husband of the complainant. He further argued that complainant and her husband were involved in many cases and CP No. D-1471 of 2010 was filed for appointing the investigation officer. The learned counsel has also produced copy of bail order in the same crime number which was granted by learned Judge, Anti-Terrorism, Khairpur in special case No.73 of 2011, in which four co-accused Shabir, Anwar, Mevo and Muhammad Riaz have been granted post-arrest bail. The learned counsel has also produced copies of written statements filed by Inspector Syed Hubdar Ali Shah SPO, Mehrabpur and Muhammad Aslam Langah, Superintendent of Police (Investigation), Naushehro Feroze, both in their statements submitted that husband of complainant Lal Bux Khan was involved in various criminal cases and details of all crime numbers are mentioned in the written statements. The learned counsel concluded that since the husband of complainant was involved in murder case of applicant’s brother, therefore, due to mala fide intentions and ulterior motives, the complainant has falsely implicated the present applicant in the case. The learned counsel referred to following case law:
1. 2010 SCMR 1178 (Dilmurad v. State). In this case, honorable Supreme Court held that in so far as the issue of common intention is concerned, it is now well settled that at bail stage same is normally one of further inquiry unless other compelling reasons existed and there were circumstances to reach a different conclusion. In the resent case, it is quite strange as to why deceased only received three/four bullet injuries while per the FIR all the accused used their automatic weapons and so also the fact that four empties of 7.62 m.m. rifle were recovered from the spot and none of a Kalashnikov.
2. 1980 SCMR 784 (Jaffar v. State). In this case, it was contended by learned counsel for the petitioners that from the available material it could not be said as to who caused fatal injury which left room for consideration as to the common intention of the others to kill the deceased, therefore, it was a case of further inquiry under section 497(2) Cr.P.C. After examining the material, the honorable Supreme Court converted petition into appeal and allowed bail to the petitioners.
3. 2007 P.Cr.L.J 987 (Ahmed v. State). In this case, learned Judge of this Court held that three accused have allegedly fired at deceased and it was very strange that complainant had even mentioned as to which accused had fired at what part of deceased body. Such a situation could hardly gathered as it would be very difficult for a person to point out as to which accused caused what injury when there was instant scuffle resulting into firing.
4. PLJ 2002 Cr.C.(Lahore) 183 (Abdul Majeed v. State). In this case, learned Judge of Lahore High Court held that five persons had independently caused injuries to complainant but surprisingly Medico-legal Report in respect of complaint reflects only two injuries on his person. Question as to which out of five persons, including petitioners, had in fact hit complainant and which of those five persons had been alleged a role which was actually non-existant was a question which surely scales for further probe, therefore, bail was granted in this case.
5. Conversely, the learned DPG for the State argued that bail application is not maintainable as the applicant has not first approached the trial court. He further argued that pre-arrest bail is not to be used as substitute or as an alternative for post-arrest bail as laid down by the honorable Supreme Court in its dictum reported in PLD 2009 SC 427. The learned DPG further argued that statement of complainant was corroborated by eyewitnesses and their statements were also recorded and they fully implicated the accused persons in the crime, therefore, no case of bail is made out and in support of his contentions, he relied upon 1990 SCMR 346, in which honorable Supreme Court held that in view of evidence of at least one eyewitness, High court rightly refused to grant bail to accused for the reasons with which no exception could be taken. Finally, he opposed the bail application.
6. The learned counsel for the complainant adopted the arguments of learned DPG that instead of directly approaching this Court, applicant should have filed bail application in the trial Court. He further argued that bail granted by trial court to four co-accused is under challenge but no orders have been passed so far. He further argued that role of present applicant has been specifically mentioned in the FIR who alongwith two other accused fired bursts of KK upon constable Salamat Ali Umrani and eyewitnesses have also implicated present applicant, therefore, no case of bail is made out.
7. To a question raised by learned DPG and leaned counsel for the complainant that applicant should have approached first to the trial court instead of directly approaching this court for pre-arrest bail, the learned counsel for the applicant invited our attention that complainant moved transfer application in the same crime number in this court and on 4.1.2012 while issuing notices and calling commits from the learned trial Court, proceedings culminating from Crime No.41 of 2011, P.S. Mehrabpur were stayed till next date of hearing. The learned counsel further pointed out that this bail application was filed on 25.5.2011 while transfer application was withdrawn by the applicant on 23.6.2011 and during this period interim orders were operating, therefore, bail application was rightly filed in which interim bail was granted on 25.5.2011, which is much prior to the date of withdrawal of transfer application by the complainant from this Court.
8. We have heard arguments of learned counsel and with their assistance also perused the case law cited at bar. To start with latest take up, the objection raised by learned DPG and learned counsel for the complainant that applicant cannot file direct pre-arrest bail application in this court without first approaching the trial court. This bail application was instituted on 25.5.2011 and we have called the file of transfer application No. D-29 of 2011 which shows that proceedings were stayed in the transfer application by this court on 1.4.2011 and the transfer application was withdrawn by the complainant/applicant on 23.6.2011, while interim pre-arrest bail was granted to the applicant on 25.5.2011, during which period proceedings in the trial court were stayed by this Court. Therefore, in exceptional circumstances, it was not possible for the applicant to move bail application in the case, proceedings of which had been stayed by this court. Therefore, in the peculiar circumstances of the case, we do not fine any logic or lawful justification to dismiss this bail application on the sole ground and direct the applicant to first approach the trial court to cater need of procedure.
9. Now next question which emerges in our mind is the role of the applicant in the FIR. The complainant in the FIR states that the applicant alongwith Riaz Tatlo and one unknown person fired bursts of KK upon constable Salamat Ali which hit on his chest and above right eye. According to postmortem report available in the police file and also pointed out by learned DPG that deceased Salamat received only two injuries while allegation against the present applicant that he along with two other accused fired bursts of KK. The complainant in the FIR stated that six persons including applicant were already sitting in room and eight persons including the applicant entered into same room. Accused Anwar Khushk, Haji Muhammad Sadiq and Shabir Ahmed fired bursts of KK on the complainant’s husband Lal Bux. Applicant alongwith two unknown persons fired bursts of KK on Salamat Ali while accused Mevo Khushk alongwith another unknown accused fired straight burst of KK on constable Suhrab Khan and Foji Nazir Ahmed. The allegation shows that many bursts of KKs were fired in room where 14 persons were available but only 22 empties of KK were recovered and seven marks of shots were shown in the room. As per contents of FIR, bursts of KK were fired upon constable Salamat Ali by the applicant and two other persons, but he received only two injuries which in our tentative opinion quite impossible that a close range in a room which creates doubt in our mind. The complainant’s counsel has not denied that in crime No.181 of 2010, husband of complainant Lal Bux was nominated on the allegation of murder of brother of applicant, namely, Muhammad Akhtar Watto, therefore, in view of existing enmity possibility of false implication of the applicant cannot be ruled out.
10. It is also a fact that four co-accused have been granted bail by the trial Court including Riaz Tatlo who allegedly fired burst of KK upon constable Salamat Ali Umrani and he was attributed same role which was assigned against the present applicant in the FIR. It is also to be proved during trial that out of three persons including the applicant who allegedly fired bursts of KK upon Salamat Ali which of accused caused fatal injury to constable Salamat Ali. It is also manifesting from the bail order passed by the trial court in case of four co-accused that statements of eyewitnesses Nazir Ahmed Sahto were recorded on 16.4.2011 under Sections 161 Cr.P.C but he did not support the case of prosecution. His statement was recorded after delay of one month and four days. Injured Nazir Ahmed also filed his affidavit in the trial court on 28.3.2011 and he personally appeared where he exonerated the accused in the commission of offence. Statements of two other PWs Allah Wassayo and Miandad were also recorded but in their statements, they did not disclose that during incident complainant was also present in the house or at the scene.
11. In case of Rana Muhammad Arshad v. Muhammad Rafique (PLD 2009 SC 427), the honorable Supreme Court held that in a proper case, the High Court has power under section 498, Criminal Procedure Code, to make an order that a person who is suspected of an offence for which he may be arrested by a Police Officer or a court, shall be admitted to bail. The exercise of this power should, however, be confined to cases in which not only a good prima facie ground is made out for the grant of bail in respect of the offence alleged, but also it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm. The honorable Court has laid down framework within which and the guidelines according to which the jurisdiction vesting in the High Courts and the Courts of Sessions is to be exercised. 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. Though in the same judgment, it was held that in the absence of a reasonable and a justifiable cause, a person desiring his admission to hail before arrest, must, in the first instance, approach the court of first instance i.e. the Court of Session, before petitioning the High Court for the purpose. It is clear from the guidelines laid down by the honorable Supreme Court that only in absence of reasonable and justifiable cause, the condition of first approaching the trial court is applicable which otherwise makes it clear that if the applicant makes out reasonable and justifiable cause he can approach the High Court directly for bail before arrest. In the present case, we have already observed that duet o interim orders operating in the transfer application, proceedings were stayed, therefore, it was reasonable and justifiable cause in which applicant has directly approached this court.
12. All aforesaid crucial questions required further inquiry and it is well settled proposition of law that even at bail stage, benefit of doubt will go to the applicant.
13. Interim pre-arrest bail granted to the applicant was confirmed on the same terms by our short order dated 18.1.2012 and above are the reasons for the same.
14. All the observations made above are tentative in nature and will not prejudice the case of the prosecution.
JUDGE,
JUDGE,
Ahmed.