GHULAM SHABBIR Versus THE STATE
This matter arises from a criminal bail application before the Sindh High Court, where the applicant sought the confirmation of pre-arrest bail in a case involving an attack on a police party. The core legal question is whether the applicant is entitled to pre-arrest bail where his name does not appear in the First Information Report, his implication is based on a statement of a co-accused, and police authorities have exonerated other co-accused assigned active roles. The court held that the interim pre-arrest bail should be confirmed, reasoning that the mala fides of the police authorities cannot be ruled out at this stage given the selective exoneration of co-accused with positive roles while implicating the applicant with a minor role. The key principle laid down is that where police mala fides in implicating an accused is apparent from the selective exoneration of co-accused with active roles, pre-arrest bail will be confirmed.
- Whether pre-arrest bail can be confirmed when the applicant's name is missing from the FIR and based on a co-accused statement?
- Does the selective exoneration of co-accused by the police indicate mala fides for the purpose of granting pre-arrest bail?
- Section 161, Code of Criminal Procedure 1898
ORDER
1. Learned counsel says that the name of the applicant does not appear in the F.I.R. according to which a number of persons had attacked the police party when they had come to arrest the nominated accused Mitho and Urs from the concerned village. However, the applicant's name has been mentioned in the challan as having been disclosed by the co-accused as one of the persons who came running to the scene of incident with a lathi. As opposed to this per learned counsel the police has let off Gul Hassan and Bux Ali who forcibly took the Seiko watch from the complainant. Similarly, Mir Muhammad who allegedly gave blows with a lathi to the complainant has also been let off. Hence per learned counsel ulterior motives of the police authorities cannot be ruled out in involving the applicant in the crime with the role only of coming at the scene with a lathi in his hand. Learned counsel therefore, prays that the interim pre-arrest bail granted earlier to the applicant be confirmed.
2. Learned State counsel has not opposed the confirmation of interim pare- arrest bail in the facts and circumstances of the case.
3. I have heard both learned counsel.
4. It would be seen that strangely enough the accused who have been given a positive role in the crime in question have been let off by the police authorities, whereas the present applicant who has been given the role of running towards the scene of the crime with a lathi in his hand has been involved and that too on the 161, Cr.P.C. statement of one of the co-accused.
5. Consequently, in my opinion at this stage the mala fides of the police authorities cannot be ruled out. Hence the interim pre- arrest granted to the applicant earlier is hereby confirmed on the same terms and conditions.
6. Criminal Bail Application No.560/2004 stands disposed of.
7. H.B.T./G-37/K Interim pre-arrest bail, confirmed.