KHALIL AHMED SOOMRO and others---Petitioners vs The STATE---

DOST MUHAMMAD KHAN, J.---Petitioners are seeking leave to appeal against the short order of the High Court of Sindh at Karachi dated 18.8.2017 whereby interim pre-arrest bail granted to the petitioners on 17.7.2017 in case FIR No, 155/17 registered by Police Station Aziz Bhatti, District East Karachi, for crimes under sections 337-A(i)/337-F(i)/337-F(vi), 337-L(2)/504, P.P.C. was recalled vide impugned short order.

2.Today this case was taken up in the morning however, the learned ASC for the petitioners stated at the bar that the reasons for the short order have not been given so far because they have not been supplied with the copies of the detail reasons. The case was kept pending and it was taken up at 12:10 p.m. and we asked the Court Associate as to whether office has contacted the Registrar of the High Court of Sindh, at Karachi, he replied in positive but stated that office asked for the detail reasons which have not been written by the learned Judge.

3.We are constrained to show our displeasure because of the nature of the order passed, as on one hand liberty of the citizens was taken back while in such petty and short matters, details reasons are delayed and that too without any justifiable reason. We hope that this practice would not be repeated in future because that will have adverse effects and repercussions on the working of the system and capability of the Judges, who are occupying high pedestals in the superior judiciary. Well concerted pointed fingers are raised by some quarters which could not be defended on any premises whatsoever, therefore, individual does not matter but the institution matters if its decorum and respect is transgressed at any level.

4. On merits we have found that all offences of the above nature are punishable by way of imprisonment which do not fall within the prohibitory part of section 497, Cr.P.C. and when the petitioners are entitled to post arrest bail thus, their prayer for pre-arrest bail, if declined, would be a matter of technicality alone while on the other hand they are likely to be humiliated and disgraced due to arrest at the hands of the local police.

5. Although for grant of pre-arrest bail one of the pre-conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration.

At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide. In this case, it appears that net has been thrown wider and the injuries sustained by the victims except one or two, have been exaggerated and efforts have been made to show that the offences are falling within those provisions of law, punishable with five years or seven years' imprisonment. All those aspects if are combindly taken, may constitute element of mala fide.

6.Accordingly, leave to appeal is granted and this petition is allowed. The petitioners are granted pre-arrest bail in the sum of Rs,30,000/- with one surety each to the satisfaction of the Trial Court/Duty Magistrate.

7. Before parting with this judgment we have noticed in numerous cases that Medico-legal Officers have assumed the status of the prosecution/prosecutors by describing the sections of penal law under which the injuries fall. This is neither their domain nor they have lawful authority to direct or convey to the Investigating Agency the nature of offence, but they should describe the nature of injuries under the new dispensation of law and not the provision of law, under which it falls.

Copy of this judgment be sent to all the Registrars of the High Courts as well as the Federal Secretary Health, Government of Pakistan and the Prosecutor Generals of all the Provinces and also Islamabad for future guidance and compliance by the Medico-legal Officers.