Cr.Bail appln.No.S-196 of
2012.
For Hearing:
-
24.12.2012. Mr. Abdul
Rehman Bullo, Advocate,
For:
applicant / accused.
Mr. Amanullah G Malik, Advocate for complainant.
Mr. Sardar Ali Shah, APG
-
SALAHUDDIN PANHWAR, J- Applicant Ghulam Hyder seeks pre-arrest bail, in Crime No.442 of 2011 registered with Police
Station, Ghotki for offence under section 365, 363
PPC.
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, baby Muskan, on 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 while, accused Haider pitafi
and Qurban Bullo, in white
car , intercepted them; they took out pistols from folds of their shalwars and accused Pitafi got
Mt. Hurmat and Baby Muskan
down from donkey cart, 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 were kept on false hopes and lastly
refused thereafter complainant lodged the FIR.
3. Learned counsel for
the applicant/ accused has argued that applicant is innocent and has falsely
and malafide been implicated due to political rivalry as he is nek-mards of his
locality; co-accused Qurban Bullo has been granted bail
by learned Sessions Judge hence applicant is also entitled for same treatment;
there is inordinate delay of 19 days in lodgment of FIR; police station is only two K.Ms away but
complainant party despite having motorcycle did not try to approach police nor
tried to chase accused persons. He has placed reliance on the case laws, reported
in PLD 2009 SC 427 and 2009 P.Cr.L.J 884.
4. On the contrary, learned
counsel for the complainant has opposed the bail plea while arguing that applicant/
accused is named in the FIR with specific role; delay in matter of honour is no
ground; abductees are yet not recovered and prima facie applicant/accused is linked
with the offence hence the applicant/accused is not entitled for concession of
pre-arrest bail.
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 complainant.
6. Heard the learned
counsels for the respective parties so also Learned APG and assessed the
available material carefully. The applicant/accused is charged with an
allegation of abducting a woman alongwith minor baby on show of weapons.
7. As regard the plea of
applicant/accused that his involvement is result of malafide on part of the
complainant it would suffice to say that it is well settled principle of law
that while claiming pre-arrest bail the applicant/accused has to establish that
his intended arrest is result of some malafide on 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 malafide
because impact of grant of pre-arrest even result in hampering the investigating
agency in collecting evidence and material. I am strengthened on this point
with the case of Rana Muhammad Arshad
V. Muhammad Rafique and another reported as PLD 2009
SC 427, principles of pre-arrest bail are defined as under:-
(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)
no 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) 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 from law; and finally that.
The reading of above makes it clear that it is the applicant/accused who has to show his intended arrest to be malafide. In the
instant case the applicant/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 the applicant/accused at the cost of the honour of the
complainant party.
8. As
regard, that since co-accused has been admitted to bail hence the
applicant/accused is also entitled for same treatment, it would suffice to say
that before insisting upon the rule of consistency; one has to establish that
he stands in the same foot of that accused, who is admitted to bail. Moreover,
it is also now well settled principle of law that case of each accused has to
be seen in according to his role.
9. So far, the ground of
delay in reporting the matter with the police, 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.
10. The perusal 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. Above all, the applicant/accused has failed to show any thing
on record, which could show that his involvement is malafide or result of some
ulterior motive, hence per available material the applicant /accused not only
appears to be linked with the offence with which he stands charged but also he
has failed to establish that his intended arrest is malafide and for ulterior
motives, hence he is not entitled for extra ordinary concession of pre-arrest
bail.
11. Accordingly, in view of
what has been discussed above, the bail plea of the
applicant/accused is hereby dismissed.
JUDGE
Akber.