Zafar and another vs The State
This bail application arose from a petition for pre-arrest bail filed by two accused individuals charged under sections 430, 353, and 504 of the Pakistan Penal Code 1860, and sections 61 and 62 of the Irrigation Act, following the dismissal of their bail plea by the Sessions Court. The core legal question was whether the accused had demonstrated sufficient grounds of mala fide or false implication to warrant the extraordinary remedy of pre-arrest bail. The High Court held that the applicants failed to establish any mala fide on the part of the complainant or the police. The court observed that the FIR contained specific allegations of damaging government water courses and obstructing water supply, supported by evidence including photographs and witness statements. Emphasizing that pre-arrest bail is an extraordinary remedy not to be used as a substitute for post-arrest bail, the court dismissed the application, ruling that sufficient prima facie material existed to connect the accused to the alleged offences, and recalled the previously granted ad-interim bail.
- What is the standard of proof required to demonstrate mala fide for the grant of pre-arrest bail?
- Is pre-arrest bail a substitute for post-arrest bail in ordinary criminal cases?
- Does the existence of prima facie material connecting an accused to an offence preclude the grant of pre-arrest bail?
- Section 430, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 61, Irrigation Act
- Section 62, Irrigation Act
ORDER
AMJAD ALI SAHITO, J. Through instant Bail Application, the applicants/accused, namely, Zafar son of Jawed and Mamoon son of Khuda Bux seek pre-arrest bail in Crime No.57/2020 for the offences under sections 430, 353, 504, P.P.C. and 61/62 of Irrigation Act registered at Police Station Mirpur Sakro, the bail plea of the applicants/accused was declined by the learned Sessions Judge, Thatta, vide order dated 07.07.2020.
2. The details and particulars of the FIR are already available in the bail application and the FIR, the same could be gathered from the copy of the FIR attached with such application, hence, needs not to reproduce the same hereunder.
3. Learned counsel for the applicants/accused has mainly contended that the applicants/accused are innocent and they have been falsely implicated in this case due to enmity with complainant Zamidar and one Abdul Ghani, who intends to purchase the land from him and when he refused to sell said land to the said Zamidar false FIR has been registered against them; that all offences do not fall within the prohibitory clause; that the applicants/accused, had joined the trial and they are no more required for further investigation.
4. Learned Additional Prosecutor General Sindh duly assisted by the complainant present in Court, who produced photographs in which excavator machine is very much available from where water supplying course was breaking, hence the ingredients of sections 430/353, P.P.C. read with section 61/62 of the Irrigation Act are very much applicable in the present case.
5. I have heard the learned counsel for the parties and gone through the material available on record.
6. The names of the applicants/accused transpired in the FIR with specific role of damaging, government water course and so also breaking the water supply. Further, the present applicants/accused caused destruction of watercourse and changed the dimension of the supply of water for agricultural purpose with intention to cause loss to the public exchequer. When the complainant enquired from the applicants/accused why they are breaking the water course constructed by the government to which the accused persons abused the complainant by pulling from his neck, they asked complainant that they would commit theft of water and complainant could do whatever he wanted. Nowadays, the offences of like nature are increasing day by day, therefore, to depreciate such kind of offences the offender must be discouraged. The PWs in their statements fully supported the version of the complainant.
7. The concession of pre-arrest bail cannot be allowed to an accused person unless the Court feels satisfied with the seriousness of the accused person's assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local police but not a word about this crucial aspect of the matter is found as no mala fide is made on the part of the complainant to believe that the applicant/accused has been implicated in this case falsely. In this context, the reliance is placed to the case of 'Rana Abdul Khaliq v. The State and others' (2019 SCMR 1129). Further, in addition to the above, I would like to mention that grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is a diversion of the usual course of law, arrest in cognizable cases, protection to the innocent being bounded on trump up charges through abuse of process of law, therefore, an applicant seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide, it is not a substitute for post-arrest bail in every run of the mill criminal cases, as it seriously hampers the course of the investigation.
8. Prima facie, sufficient material is available on the record to connect the applicants/accused with the commission of offence. Learned counsel for the applicants/accused has failed to point out any ill-will on the part of the false implication of the applicants/accused in this case. Learned counsel has failed to make out a case for grant of pre-arrest bail, therefore, the bail application is dismissed and the ad-interim pre-arrest bail granted to the applicants/accused by this Court vide order dated 14.7.2020 is hereby recalled.
9. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial Court while deciding the case of the applicants/accused on merits.