KHALIL AHMED SOOMRO Versus State
ORDER
MUHAMMAD SALEEM JESSAR, J. ---Applicants 1. Khalil Ahmed,
2. Jalil Ahmed,
3. Tarique Ahmed and 4. Kaleemullah, all by caste Soomro, have approached this Court for pre-arrest bail in Crime No.155/2017 registered with Police Station Aziz Bhatti, District Karachi East, for offence under sections 337-A(i), 337-F(i), 337-F(vi), 504, 337-L(2), P.P.C. They were admitted to interim pre-arrest bail on 17.7.2017, which has been heard for confirmation or otherwise.
2. According to the case of prosecution, on 03.5.2017, at 09.30 p.m. FIR of this case was registered by police of Police Station Aziz Bhatti on the oral statement of Khadim Hussain Soomro, mentioning therein that on 30.4.2017 his brother Zaigham Hussain informed him over phone that accused Khalil Ahmed Soomro and others having come to their house have started fighting with them, therefore, he should come to home immediately, whereupon he gave such information to 15 Police and at about 7.30 p.m. reached at his house, where he found his brother Mukhtiar Ali Soomro having injuries on head, shoulders, back and other parts of body, while his another brother Zaigham Hussain was having injuries above the left side ear at head and back, which he alleged to have been caused by accused persons, namely,
1. Khalil Ahmed,
2. Jalil Ahmed,
3. Tarique Hussain,
4. Kaleemullah and other unidentified persons by means of kicks, fists and 'danda'.
3. After registration of the case, the present applicants apprehending their arrest approached the learned Sessions Judge, Karachi East. Interim pre-arrest bail was granted to them; however, subsequently vide order dated 13.07.2017 passed by the learned VI-Additional Sessions Judge, Karachi East the pre-arrest bail application of the applicants was dismissed.
4. Mr. Dur Muhammad Shah, learned Counsel for the applicants, inter alia, contended that the applicants are innocent and have been implicated in this case falsely; that both parties i.e. the complainant party as well as the accused persons are closely related to each other and since long they are on inimical terms with each other; that the FIR has been recorded on the basis of oral statement of Khadim Hussain, while in the FIR injured Zaigham Hussain has been shown as complainant; that there is inordinate delay of three days in lodging the FIR, for which no plausible explanation has been furnished by the complainant; that in fact on 30.4.2017 the complainant and his brothers had attacked upon the applicants/accused and had caused kicks and butt blows of pistols to applicants Khalil Ahmed and Kaleemullah and such FIR bearing Crime No.167/2017, under sections 337-F(vi), 337-F(v), 337-L(2), 337-A(i), 504, 34, P.P.C. was lodged by applicant No.4 Kaleemullah at the same police station on 09.5.2017 and the FIR of this case is the counter-blast of the said case and that in that case complainant of this case is on bail; that in view of counter-versions regarding one and same incident, it would be determined at trial as to which of the parties is aggressor and which one is aggressed upon; the case against the applicants/ accused requires further enquiry, therefore, they may be admitted to pre-arrest bail.
5. On the other hand, Ms. Seema Zaidi, learned Deputy Prosecutor General and the complainant present in person, opposed the grant of pre-arrest bail to the applicants and contended that the applicants are nominated in the FIR with specific role of trespassing into the house of complainant and causing injuries to the injured persons. He further contended that no doubt there is previous enmity between the parties, but it is no ground for grant of pre-arrest bail. Learned DPG further contended that after the incident the complainant had taken his injured brothers to hospital where he remained busy in their treatment, therefore, delay in recording FIR appears to be plausibly explained. She further contended that the injured P.Ws in their 161, Cr.P.C. statements have fully supported the version of complainant and the medical evidence is also fully corroborating and supporting the ocular version. Lastly, she contended that the applicants have no case for grant of pre-arrest bail, therefore, their pre-arrest bail application may be dismissed.
6. I have heard the counsel for the parties and perused the material available on record with their assistance.
7. Before dealing with the merits of the case, it would be conducive to reproduce the relevant paragraph of the order dated 13.07.2017, whereby the learned VI-Additional Sessions Judge, Karachi East has rejected pre-arrest bail application of the applicants, which reads as under:-
"I have heard the learned counsel for the applicants/accused and learned ADPP for the State and perused the available material on record. It appears that all accused with their common intention entered in the house of complainant and inflicted Danda and kicks and fist blows upon the complainant party through which the injuries were received by Zaigham and Mukhtiar and they were also referred for medical examination and examined by the medical officers. The medical certificate was also issued after their examination and injuries were declared as sections 337-F(vi)/337-A(iii)/337-L(2). The same medical certificate was challenged by the accused party before the medical board but after examination of injured the same medical certificate was declared to be correct. There are reasonable grounds available on the record which connect the accused with commission of offence. The accused have failed to show the mala fides of the complainant or police with regard to their false implication in this case. Therefore, the accused have failed to make out their case for grant of extraordinary relief as provided under section 498, Cr.P.C. Therefore, I see no merits to the instant bail application and same is hereby dismissed."
8. Admittedly, the applicants are nominated in FIR with specific role of beating complainant Zaigham Hussain and his brothers with kicks, fists and dandas. As far as dispute between the parties is concerned, the enmity being double-edged weapon always cuts the roots of either side and at this juncture the ground of enmity instead of favouring them is supporting the version of prosecution, therefore, question of cross-versions which party was aggressor and which one was aggressed upon is a question which will be determined at the time of trial after recording evidence. It is settled law that pre-arrest bail is an extraordinary relief to be granted only in extraordinary circumstances to protect innocent persons against victimization through abuse of law for ulterior motive and pre-arrest bail may not be used as a substitute or as an alternative for post arrest bail. Moreover, the applicants/accused are brother-in-law and nephews of the complainant and injured P.Ws and they after entering into the house of complainant have wounded their maternal uncles, therefore, question of mistaken identity or false implication does not arise.
9. It may be observed here that bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified in subsection (2) to section 497, Cr.P.C. and the accused has to show that his arrest was being sought for ulterior motives, particularly, on the part of police to cause irreparable humiliation and disgrace and dishonor him and the applicant seeking pre-arrest bail should further establish that he had not done any act which would disentitle him to a discretionary relief, whereas in the instant case the applicants having been nominated in the FIR have been assigned specific role of causing kicks, fists and danda blows to the complainant and his brothers. The conditions prescribed for bail before arrest, as have been laid down by Hon'ble Supreme Court of Pakistan in the case of Murad Khan v. Fazal-e-Subhan and another (PLD 1983 SC 82), followed by Hon'ble Supreme Court in the case of Muhammad Arshad v. Muhammad Rafique (PLD 2009 SC 427), do not appear to have been satisfied in the instant case. Learned Counsel could not satisfy the Court with regard to the conditions of mala fide of the intended arrest, therefore, this is not a fit case for grant of anticipatory bail, though after their arrest the applicants would be at liberty to urge the point on the basis of which the trial Court has declined pre-arrest bail to them.
10 In view of above facts and circumstances, the applicants were not found entitled to extraordinary concession of pre-arrest bail and this bail application was dismissed by short order passed on 18.8.2017. Above are reasons for the same.
11. Needless to mention that the observations recorded hereinabove are tentative in nature and the same shall, in no manner, prejudice the case of either party at trial.
12. It may be pertinent to mention here that instant bail application was dismissed by short order dated 18.8.2017 and the same was sent in the office for compliance on 19.8.2017, where it was kept without any reason and despite repeated demands by the Court Associate office failed to provide the file for recording the detailed reasons and in the meantime on 28.8.2017 the roster sitting of undersigned was changed and fixed at Larkana Circuit Court of this Court and thereafter on the directions of undersigned the file was provided by the office on 16.9.2017 for recording detailed reasons. It might be on account of inadvertence, therefore, office is warned to remain careful in future.
MQ/K-6/Sindh Bail refused.