2020 PLP 1431 (YLR)

MRS. RASHIDA ASAD, J.

Muhammad Aijaz Yousfzai applicant through the above referred bail application has sought pre-arrest bail in FIR No. 285/2019 under sections 395/ 170/171, P.P.C., registered at Police Station Gulistan-e-Jauhar, Karachi.

2. Brief facts as narrated by complainant in the FIR are that he works in Health Department, on 14.05.2019 at 06:00 am, door of his house was knocked and upon opening he found four persons including one lady and two armed security guards along with his colleague Rehmat Ali Khan. They introduced themselves as NAB officials by showing their I.D. badges and one of them disclosed his name as Major Akhtar Abbas, who told the complainant that a complaint is filed against him therefore, they have to search the house. Complainant demanded search warrant, but they forcibly entered into the house on gun point and detained his all family members and took away Rs.25/30 lacs and gold ornaments. On demanding receipt of the same they refused and directed him to sign blank paper and to arrange further amount and left the premises. At about 10:00 am the accused made a call from cell No.0303-4263589 to cell No.0333-3984864 (of his colleague Rehmat Bhai) and demanded further amount. On 15.05.2019 at about 1610 hours they called him from an official number 021-99213049. Again on 16.05.2019, a call was received from cell No.0315-2066774 and caller directed the complainant to pay further amount and assured that in return the case shall be closed. Complainant thereafter, reported the matter to police against Major Akhtar Abbas and others.

3. Bail application moved on behalf of applicant before the trial Court was rejected vide order dated 02.08.2019. Thereafter, applicant has approached this Court for same relief.

4. Learned counsel for the applicant contended that the applicant has been falsely implicated in this case; that there is dispute between the parties; that there is delay of 03 days in lodging of the FIR; the mobile numbers from which the calls were made are not in the name of the applicant; the applicant was connected in the present offence on the basis of statement made by co-accused before police, which is inadmissible under the law; the applicant is not nominated in the FIR; no specific role has been assigned to the applicant; the applicant has been nominated in the present FIR just to harass and humiliate him. Lastly, he prayed for grant of pre-arrest bail to the applicant.

5. On the other hand learned Deputy Prosecutor General Sindh assisted by learned counsel for the complainant vehemently opposed the grant of pre-arrest bail to the applicant on the ground that applicant is a habitual criminal and is an active member of a gang of dacoits; that co-accused Naeem and Husnain named the applicant as one of their companion. He prayed for dismissal of his pre-arrest bail application.

6. I have considered the arguments of the learned counsel for the applicant, learned Deputy Prosecutor General Sindh as well as learned counsel for the complainant and have perused the record minutely.

7. As regards to the argument of learned counsel for the applicant that applicant has been implicated malafidely on the statement of co-accused is concerned, from perusal of record, it appears that both co-accused have implicated present applicant in commission of the offence as one of their companion, such statement ex-facie is an incriminating circumstance against him even at this stage. Reliance is placed upon the case reported as Ghulam Ahmad Chishti v. The State and another (2013 SCMR 385), wherein the Honourable Supreme Court has held:- "The statement of a person who was initially a co-accused alone may not be sufficient to convict someone but in terms of Article 43 of the Qanun-e-Shahadat Order, it can be used as a circumstantial piece of evidence even at bail stage to form a prima facie view about the involvement of a person."

8. It is further observed that to earn the extraordinary relief of pre-arrest bail, the accused must not only show 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 but he is also required to show that his arrest is being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him, as held in the case of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427). The applicant is charged with heinous offence and it has come on record that during investigation, the police has also recovered some amount from both co-accused, therefore, the applicant has failed to establish any mala fide on the part of the complainant.

9. As regards to the delay in lodging of the FIR is concerned, perusal of FIR shows that in early hours of the morning the accused came at the house of the complainant, impersonating themselves as NAB officials and forcibly entered into the house on the force of arms and looted huge amount of cash as well as gold ornaments while detaining the housemates. Thereafter, accused kept contacting to the complainant through mobile phones for settling the matter on payment of certain amount and they also made call from official number. Finally, when the accused made demand of money in order to close the case, the complainant lodged the FIR against them. Therefore, the delay so caused has been explained plausibly and same is not helpful for the applicant. Even otherwise, each case has its own merits and circumstances, therefore, delay in every criminal case cannot be presumed to be fatal for the prosecution case because, mere delay in lodgment of FIR alone is not sufficient to claim release on bail. In the instant case the accused has failed in bringing his case within scope of section 497(2) of the Code. Such failure on part of the applicant would disentitle him from earning concession of extraordinary relief of pre-arrest bail.

10. In the circumstances, there is sufficient material available on record to connect the present applicant with the commission of the crime. In view of the above-mentioned facts, circumstances and reasons, instant bail application is devoid of merits and the same is dismissed. Consequently, interim pre-arrest bail already granted to the applicant by order dated 09.08.2019 is recalled.

11. Needless to mention here that the observations made hereinabove are tentative in nature and the learned Trial Court shall not be influenced by the same while deciding the case of accused on merits. ADN/M-72/Sindh Application dismissed.