ASHFAQUE HUSSAIN Versus State
ORDER
MUHAMMAD ALI MAZHAR, J.--- By means of this Criminal Petition for leave to appeal, the petitioners impugn the Order dated 02.10.2025, passed by the High Court of Sindh, Bench at Sukkur in Cr.Bail Application No. S-348 of 2025, moved for seeking prearrest bail in the First Information Report (FIR) No.33 of 2025, lodged by the complainant (Muhammad Achar) under Sections 452, 354-A, 337 A (i), 337 F (i), 506/2, 504, 114, 147, 148 and 149, P.P.C. at P.S Setharja, District Khaipur.
2. According to the chronicles of the FIR, the complainant is a disabled person who is running a small shop for livelihood. He acquired a piece of land in the Sinarja area, Osmanabad locality. After the death of his elders, Ashfaq Hussain Rind forcibly occupied the said land. The complainant repeatedly asked him to vacate the land but Ashfaq Hussain Rind used to threaten him. On the fateful day, when the complainant along with his daughter Ms. Momal and his relative Imtiaz were present at his home at around 9:00 am, Ashfaq Hussain, Afaq Rind, Rizwan Rind, (petitioners) along with two unknown persons illegally entered into the house of complainant. Afaque inflicted lathi blow on the middle of the head of Ms. Momal; accused Rizwan inflicted lathi blow on the right side of her head, blood was oozing so she cried and fell down; accused Ashfaq Hussain and others inflicted injuries to the complainant and her daughter on the entire body and other accused by holding hairs of Ms. Momal, dragged her on the ground and her cloths were torn. After the incident, all the accused/petitioners with lathis and weapons fled away. The petitioners had filed Pre-Arrest Bail Application No. 1094 of 2025 in the trial Court which was dismissed vide order dated 25.04.2025. The petitioners also filed Criminal Bail Application No. S-348 of 2025 before the High Court of Sindh, Bench at Sukkur, which was also dismissed vide impugned order dated 02.10.2025.
3. The learned counsel for the petitioners argued that the High Court failed to appreciate that there were some civil disputes regarding ownership and possession of immovable property and on account of which the complainant maliciously lodged the FIR to drag the petitioners into a false case. It was further contended that prior to the registration of the present FIR, the Petitioner had already lodged two FIR(s) against the complainant's family members for illegal occupation of his property. It was further argued that the allegations are vague. No specific act or injury has been attributed to any of the petitioners and insertion of Section 354-A, P.P.C. is baseless. According to the learned counsel, the allegations of stripping of clothes is false. The aforesaid Section was included to attract the prohibitory clause and denying the right of bail. It was further argued that the offence allegedly occurred at 9:00 A.M, yet no independent or impartial witness was cited.
4. Heard the arguments. Consistent with the FIR, the petitioners, Ashfaq, Afaque and Rizwan carrying Lathis (batons) with two unknown persons carrying pistols entered into the house of complainant and committed the offenses mentioned in the FIR. Not only did they inflict injuries to the complainant and her daughter on entire body, and also dragged her on ground by holding her hairs due to which her cloths were torn, hence Section 354-A was also inserted in the FIR. The offence was said to have been committed by the petitioner and other co-accused at the house/abode of the complainant party, therefore, the possibility of common object or act which stands for and connotes a prearrangement and common intention/objective of committing the offense cannot be ruled out. In order to decide the question of common object of an unlawful assembly, the demeanor of each of the members of the said assembly is relevant for consideration of the Court during trial. In the present case, all the accused with the common intention and object committed the offense and their roles are mentioned in the FIR, therefore under the niceties of Section 149, P.P.C., every member of any unlawful assembly stands to be accountable for committing the crime, provided the said criminal act is perpetrated with a common object or such act as that every member of the assembly was mindful that such offence is likely to be committed and there must be some nexus between the common object and the offence committed. According to Section 141 P.P.C., an assembly of five or more persons is designated an unlawful assembly for a common object of the persons composing that assembly. No doubt that the common object of the assembly must be one of the five objects mentioned in Section 141, P.P.C. which can be gathered from the milieu of the assembly including the arms used by them and the behavior of the assembly at the scene of crime, but it is quite noticeable from the language used in Section 149, P.P.C. which makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Obviously when the alleged offense was committed in the house of complainant, the presence of witnesses from outside was not possible. Further, the plea that the petitioners had also lodged some FIRs against the complainant does not permit them to commit the offence or take the law in their own hands. The offense, if any committed by the complainant, law will take its own course but mere registration of FIR does not seem to wash out the subsequent crime if any committed by the present petitioners.
5. Perusing the FIR as well as the bail rejection orders passed by the learned Trial Court and learned High Court, it is gleaned that the petitioners distinctly and conspicuously nominated with their active participation in the alleged offence with clear roles. FIR was lodged promptly and prosecution witnesses profusely supported the version of complainant in their statements recorded under Section 161, Cr.P.C. More particularly, the alleged offence under Section 354-A, P.P.C. is a heinous and odious crime which falls under the prohibitory clause of Section 497, Cr.P.C.
6. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. Sufficient material is present to demonstrate the petitioner s involvement in the case without any reasonable doubt and the expression reasonable grounds refers to grounds which may be legally tenable, admissible in evidence and appealing to a reasonable judicial mind as opposed to being whimsical, arbitrary or presumptuous. It is a well settled exposition of law that the grant of pre-arrest bail is an extraordinary relief which may be granted in extraordinary situations to protect the liberty of innocent persons in cases lodged with mala fide intention to harass the person with ulterior motives. By all means, while applying for pre-arrest bail, the petitioner has to satisfy the Court with regard to the basic conditions quantified under Section 497 of the Code of Criminal Procedure, 1898 ( Cr.P.C. ) vis- -vis the existence of reasonable grounds to confide that he is not guilty of the offence alleged against him and the case is one of further inquiry. In the case of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427) , this Court has discussed the framework and guidelines for granting bail before arrest under Section 498, Cr.P.C., and laid down the following parameters for pre-arrest bail:- (a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary 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) not 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 at law; and finally that; (f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest must in the first instance approach the Court of first instance i.e. the Court of Sessions, before petitioning the High Court for the purpose. Reference of Orders authored by one of us in the case of Ahtisham Ali v. State (2023 SCMR 975 = PLJ 2023 SC (Cr.C) 212 = 2023 PSC (Crl.) 401) and Muhammad Ali Mahar v. State (2024 SCMR 1584 = PLJ 2025 SC (Cr.C) 87)
7. In the wake of the above discussion, we are not inclined to enlarge the petitioners on bail. The Criminal Petition is dismissed and leave to appeal is refused. The findings and observations made are tentative in nature and confined only to the extent of pre-arrest bail rejection and shall not prejudice the case of either party during the trial.
MH/A-63/SC Bail declined.