Cr:Misc:
Appln:No.195 of 2012.
For Hearing:
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24.12.2012. Mr. Amanullah G Malik, Advocate for applicant.
Mr.
Abdul Rehman Bullo, Advocate for respondent.
Mr. Sardar Ali Shah, APG
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SALAHUDDIN PANHWAR, J- Applicant Khan
Muhammad has filed instant application u/s 497 (5), Cr.P.C, seeking cancellation of pre-arrest bail,
granted to the accused/respondent Qurban by the
learned Sessions Judge, Ghotki in Crime No.442 of 2011 registered with PS
Ghotki for offence under section 365, 363 PPC vide order dated 28.01.2012.
2. The relevant facts of
the case are that Complainant lodged the above FIR against the accused persons,
including the present applicant /accused, alleging therein, that On 12.12.2011
he alongwith his daughter in law Mst. Subhan @ Hurmat and baby Muskan, by donkey
cart, were on the way to Ghotki town for treatment of
baby Muskan; when at about 10.00 a.m they reached Adilpur link road, where one white colour
car came infront of them, wherefrom accused persons
namely Hyder son of unknown Pitafi r/o Shahbaz colony
Ghotki and Qurban son of unknown (respondent No.1) by
caste Bullo Gadani r/o Kot
Bulla alighted; they took out pistols; accused Haider Pitafi abducted Hurmat and Baby Muskan while saying that he is kidnapping Mst. Subhan @ Hurmat with intention to commit Zina and marriage.
The complainant raised cries which attracted PWs namely Nadir Hussain and Gul
Sher son of Muhammad Siddique, who reached there on their motorcycle and also
identified the accused persons but the accused persons kidnapped away Mst. Subhan @ Hurmat and baby Muskan
in their car. Thereafter, the complainant party approached the accused persons
for return of abductees; but was kept on false hopes; thereafter complainant
lodged the FIR.
3. Learned counsel for
the applicant/complainant has ,inter alia contended that name of the respondent No.1
with specific role, transpires in the FIR; the occurrence is of day time hence there is no chance of incorrect identification; the
abductees are not yet recovered; the respondent No.1 is prima facie linked with
the commission of the offence; While referring to statement of SDPO, appended
with this petition, he added that the respondent No.1 did not join the
investigation; respondent No.1 was never
entitled for extra ordinary concession of pre-arrest bail; impugned order is
capricious and not maintainable. Concluding so, he prayed for cancellation of
bail and has relied upon the case of
Muhammad Ibrahim v. Rashid Ahmed and
others, reported in (1993 P.Cr.L.J 1755) and case of The State v. Riaz Ahmed reported in 2001 MLD 255 (Karachi).
4. Conversely, learned
counsel for the respondent No.1 has argued that no specific role is attributed
to respondent No.1; mere presence would not be sufficient to deprive him from
his right of liberty; respondent No.1 is falsely implicated in this case by the
complainant; FIR is delayed by 19 days and even 161 Cr.P.C. statements are
delayed. He concluded that order is well reasoned hence not open to
interference.
5. Learned APG, on his
turn, has argued that the case is of abduction; recovery is not effected hence
he supported the contentions of the learned counsel for the
applicant/complainant.
6. Heard the learned
counsels for the respective parties so also Learned APG and assessed the
available material carefully. Before going into the merits of the case, I would
like to refer here the case of Muhammad Arshad Vs
Muhammad Rafique” reported in PLD 2009 SC 427, in which honourable Supreme
court has held:-
(a) Grant
of bail before arrest is an extraordinary relief to be granted only in extra
ordinary 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 motives, particularly on the part of the police; to cause
irreparable humiliation to him and to disgrace and dishonour
him;
(e) in
the absence of a reasonable and a justifiable cause, person desiring his admission to bail before
arrest, must, in the first instance, approach the court of first instance i.e
the Court of Sessions, before petitioning the High court for the purpose.
The above guidelines makes it clear and obvious that one would be
entitled to extra ordinary concession of pre-arrest bail only if he succeeds
not only in establishing existence of reasonable grounds making case against
him one of further enquiry but also that his involvement and intended arrest is
result of malafide on part of the complainant or police.
7. Let’s examine the case
of the accused/respondent No.1, in view of the above authoritative proposition
of law; so as to find out whether the accused/respondent No.1, succeeded in
establishing existence of reasonable grounds asking for further probe towards
his guilt couple with his involvement as a result of malafide or some ulterior
motives. There can be no cavil to deny that while claiming pre-arrest bail the
applicant/ accused has to establish that his intended arrest is result of some
mala fide on the part of the police or the complainant party. This has to be
established by the applicant/ accused not by uttering words of “malafide” but
some material or reasons which could prima facie show that involvement of the
applicant/accused is result of ulterior motive because impact of grant of
pre-arrest, even, effects hampering the investigating agency in collecting
evidence and material. In the instant case the respondent No.1/accused, except
uttering words that his involvement is result of some mala fide, placed nothing
on record nor could point out any prima facie reason which could justify plea
of false involvement of respondent NO.1/accused at the cost of the honour of
the complainant party.
8. The perusal of the
order of the learned Sessions Judge would show that he granted bail to
respondent No.1/ accused through order impugned while declined the pre-arrest
bail plea of co-accused Hyder Pitafi with separate order while holding the case
of respondent NO.1/accused to be on different footing from that of co-accused
Hyder Pitafi. It was further held in the order, impugned, in result of
discussion of same set of evidence in both order (s) that mere presence of one
at spot is not sufficient to hold one linked with alleged offence. I am in
quite agreement with such proposition but perusal of record would reflect that allegation
against the respondent No.1/accused and co-accused Hyder Pitafi are identical
except that co-accused Hyder Pitafi
allegedly got abductees down from donkey cart and uttered words of Zina
and marrying Mst. Subhan @ Hurmat. In same set of evidence (material) the respondent
No.1/accused was alleged to have come with co-accused Hyder Pitafi; took out
pistol from his fold of shalwar and both accused took
away alleged abductees alongwith baby Muskan in one and same car, hence it is obvious that it was
not a case of mere presence of respondent No.1/accused but he was actively
involved in commission of the abduction of one lady and one minor girl,
therefore, I do not find myself in agreement with the conclusion drawn by
learned Sessions Judge while admitting the respondent No.1/accused to
pre-arrest bail.
9. Regarding the delay in
lodgment of F.I.R it would suffice to say that mere delay in lodgment of FIR is
no ground to claim bail. Further, in matter of honour and respect the parties
first make every possible attempt to have the matter settled within the
boundaries, besides, this the complainant has claimed that he made approach to
the accused party for return of the abductees and on their refusal he lodged
the FIR, hence the delay appears to have been explained. Further, examination
of the record shows that the applicant/accused is directly charged with an
offence involving capital punishment, the incident is of day time;
applicant/accused is specifically named with active role and the abductees have
not been recovered so for.
10. The above discussion
makes me of the clear view that the order of grant of pre-arrest bail to the
respondent No.1/accused does not fit in the frame-work, so provided for grant
of pre-arrest bail hence needs not be approved. However, since I am quite
conscious of the fact that the extra ordinary circumstances are required to justify
the depriving a person from his liberty, by cancellation of bail but at the
same time. It is worth to add that grant of pre-arrest bail is never meant to stop
the investigating agency from investigating further in collection of material
and affecting recoveries e.t.c, therefore, whoever is extended such an extra
ordinary concession of pre-arrest bail is not only directed to join
investigation but he is also legally obliged to co-operate with investigating
agency. Accordingly, the report,
appended with the petition, patently shows that respondent No.1/accused, was
specifically directed by Sessions Judge to join investigation, but he has not joined the investigation of the
case, wherein two persons, including a minor baby, have allegedly been
kidnapped by the accused persons, including the respondent No.1/accused and
recovery of abductee is still not effected. Such attitude alone on part of the
respondent No.1/accused is sufficient to bring his case within exceptions where
the order of pre-arrest bail can legally be recalled, withdrawn and even
set-aside. Reference can be made to the case of Raja Fazal
e ur Rehman V. Muhammad Afzal and another, reported in 2010 SCMR 179.
11. The above discussion
has made me of the view that the order of grant of pre-arrest bail to
respondent No.1/ accused is against the parameters of pre arrest bail, laid
down by the honourable Supreme Court in dictum of Rana
Muhammad Arshad (supra) but also the respondent No.1/
accused, from his own conduct and attitude, has brought his case within
exceptions which warrants cancellation of his bail. Accordingly, the order
dated 28th January, 2012 passed by Sessions Court is hereby
set-aside. Consequently, instant criminal
miscellaneous application is allowed.
JUDGE
Akber.