2020 PLP 29 (YLRN)

SHAMSUDDIN ABBASI, J.

Applicants ASI Abdul Qadir, ASI Ashique Ali, P.C. Shoukat Ali, P.C. Raja Naveed, P.C. Ghulam Shabir, P.C. Abdul Shakoor, P.C. Abdul Razzak, P.C. Naseeruddin, P.C. Murad Ali and P.C. Awais seek their admission to pre-arrest bail in Crime No.17/2016, registered at Police Station Amrote Sharif (District Shikarpur), for offences punishable under Sections 302, 365-A, 452, 114, 147, 148, 149 P.P.C., 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and 6/7 of Anti-Terrorism Act, 1997, after their request for anticipatory bail was declined by learned trial Court vide its Order dated 16.11.2019.

2. The case of prosecution is that on 17.8.2016 complainant Mst. Zarbano wife of Gul Hassan Brohi lodged FIR with Police Station Amrote Sharif, stating therein that, her son Noor Hassan aged about 20 years was married to sister of Muhammad Ali Brohi; however due to some domestic matters she left the house and was residing with her brother Muhammad Ali, to which Muhammad Ali and others were annoyed with complainant party and were declaring that they will get Noor Hassan murdered. That, on 01.08.2016 the complainant, her son Noor Hassan, her husband Gul Hassan, Deedar, Ghulam Ali, Zamir and other womenfolk of the house were present in the house, when at about 06.00 a.m. there arrived accused ASI Abdul Qadir Langah, PC Mumtaz Ali, PC Abdul Rahim, PC Mukhtiar Ali, PC Nazir Ahmed, PC Fayaz Ahmed, PC Nadir Ali, PC Murad Ali, PC Naseeruddin, PC Raja Naveed, driver PC Ghulam Shabir, ASI Ashique Ali Shahani, H.C. Imdad Ali, PC Ghulam Shabir, PC-2353 Shoukat Ali, PC Muhammad Awais, PC-281 Shoukat Ali, PC Javed Ahmed, PC Ahmed Ali PC Ghulam Ishaque, driver PC Abdullah, PC Abdul Razzak all armed with official rifles; came in official vehicles and entered into the house of complainant and on show of force of weapons robbed two motorcycles and abducted all the above named male members complainant's family and put them in police-mobiles. The complainant and her relatives Mst. Rasheeda and Mst. Fateh Khatoon followed the accused persons while taking Holy Qur'an, who stopped at Bhanbhro-Wah where a white color car was already available, out of which accused Muhammad Ali Brohi got down and identifying Noor Hassan, instigated them to kill him; on his instigation accused PC Mumtaz made direct fire from official rifle at Noor Hassan which hit on his chest and accused PC Ghulam Shabir made fire from official rifle at Noor Hassan which hit him on his thigh of left leg and he fell down by raising cry and died within sight of complainant party. The complainant party entreated the accused persons in the name of Allah Almighty and Holy Qur'an, then all the accused while putting dead body and other captives in the police mobiles went away demanding ransom amounting of Rs. One lac for release of male members of the complainant. It is further stated in FIR that complainant party then took procession on the road, where S.S.P. Shikarpur came and promised for registration of FIR and released Gul Hassan, Deedar and Zamir while Ghulam Ali was not released. Thereafter, the complainant approached the concerned Court by moving application and obtained order for registration of FIR, ultimately her FIR was lodged to the above effect.

3. It is inter-alia, contended by learned counsel for applicants that applicants are innocent and they have been falsely implicated by complainant in this case; that there is inordinate delay in lodging the FIR; that case was firstly investigated by D.S.P. Sanaullah Sarki the S.D.P.O, Tajodero, who found the case to be false and after getting such approval from S.S.P. Shikarpur recommended the case for its disposal under "B" class; that the case was again reinvestigated by DSP, Ali Raza Leghari SDPO, Sultankot, who too recommended the case for its disposal under "B" class, but the learned trial Court did not agree with opinion of police and directed for submission of final report under section 173, Cr.P.C., therefore, the challan of the case was filed. Per learned the applicants have joined the trial and are attending the trial Court.

4. On other hand, learned D.P.G. opposed confirmation of interim pre-arrest bail to applicants contending that the accused are police personnel and they by using official weapons have committed the murder of an innocent citizen of young age.

5. Learned Advocate for complainant vehemently opposed grant of bail to the applicants by arguing that they are nominated in FIR with specific role of house trespass; robbery from house; kidnapping of five innocent persons and killing one of them mercilessly in front of their womenfolk; that the offence with which the applicants are charged is heinous one and falls within prohibitory clause of section 497, Cr.P.C., as such they do not deserve extra ordinary concession of pre-arrest bail, as no mala fide is alleged or proved against the complainant party.

6. We have heard the learned counsel appearing for the parties and gone through the material available on record.

7. From the perusal of record it appears that delay in lodging of FIR has been well explained. All the nominated accused belong to the police department therefore, police was reluctant to register the case of the complainant and after getting directions of the learned 1st Additional Sessions Judge/Ex-Officio Justice of Peace, Shikarpur, the instant FIR was lodged against the applicants/ accused; no doubt initially the I.O. recommended this case for disposal under "B" Class, but learned trial court ordered for its disposal under "C" class vide order dated 09.6.2016, which was called in question before this court, this court after hearing the parties and perusing the record this court by setting aside the impugned order directed the SSP, Shikarpur to hand over the investigation of the case to a God fearing and honest police officer not below the rank of DSP, who shall record statement of PWs and submit such fresh report under section 173, Cr.P.C. Thereafter, investigation was assigned to DSP, Sanaullah Sarki, SDPO, Madeji, who again recommended the case for its disposal under false "B" class and submitted such report before learned trial court on 18.8.2019, but the learned trial court after hearing the parties directed the I.O. to submit challan vide order dated 26.9.2019. Thereafter, final challan was submitted.

8. It is a matter of record that counter FIR was lodged by the applicant/ accused ASI Abdul Qadir Langah, bearing crime No.16 of 2016 under sections 324, 353, P.P.C. registered at Police Station Amrot Sharif in which deceased of this case namely Noor Hassan Brohi, was shown to have been killed during an encounter between police and criminals. The accused shown in the counter FIR were sent up for trial before the competent court of law and after full dress trial the learned trial court had acquitted all the accused. It is also a matter of record that Inspector General of Police, Sindh, assigned inquiry of FIR No.16 of 2015, relating the alleged encounter, registered at P.S. Amrot Sharif to Police officer Mr. Tanveer Hussain Tunio, SSP, Shaheed Benazir Abad who conducted inquiry and furnished his report to I.G. Sindh. with specific findings that the alleged encounter was fake. At this juncture, we have noticed two aspects of the case i.e. in inquiry conducted by Mr. Taveer Hussain Tunio, SSP, he held that the alleged police encounter was fake and the learned trial court after full dress trial had also acquitted accused of the encounter. In such view of the matter, contention of the learned counsel for the accused that the subject case has been falsely lodged by the complainant, at this juncture carries no weight; no doubt specific role of causing injuries to deceased Noor Hassan has been assigned to co-accused namely P.C- Mumtaz Ali and P.C- Shabir who are still at large but all the PWs have supported the case of prosecution; record shows that since 2016 applicants/accused have never approached to any court for pre-arrest bail; on a query the learned counsel has stated that they all along remained on their duties despite that they were not arrested and were shown absconders in the challan; which adversely reflects not only upon the officials, but on the police too; for making out case for grant of pre-arrest; the responsibility of the applicants is to prove mala fide on the part of the complainant party and their arrest at the hands of police with ulterior motives, the applicants have failed to make out their case of grant of pre arrest bail as mala fide on the part of complainant and their arrest with ulterior motives, which are essential requirements for grant of pre arrest bail are lacking in this case. Mere recommendation for disposal of the case under cancel class is not sufficient to make out their case for extra ordinary relief of pre-arrest bail in view of the fact that all the applicants/accused are police officials. In this context we would rely upon the case of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427) wherein Hon'ble apex court has given the guidelines for pre-arrest bail and it has been held as under:- "

9. Ever since then, the said interpretation so made, the said powers so found and the parameters so prescribed, have been regularly and repeatedly coming up for scrutiny by the Superior Courts including this Court. But each time the matter was re-examined, the same was only re-affirmed. The said Concept as it was initially propounded; as it developed and as the same stands today may be summarized for the benefit of us all as under:-- (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 motive, particularly on the part of the police; to cause irreparable humiliation to him and to disagree 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 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 instant i.e. the Court of Session, before petitioning the High Court for the purpose".

9. In view of the law laid down by the Hon'ble Apex Courts and in the circumstances of the case in hand, prima facie, it appears that the sufficient material is available on the record to connect the applicants with the commission of the offence, alleged against them falling within the prohibitory clause of section 497, Cr.P.C, therefore, we are of the considered view that the applicants are not entitled for the grant of extra-ordinary concession of pre-arrest bail. Accordingly, this bail application is dismissed.

10. The observations made herein above are tentative in nature which shall not prejudice case of either party at the trial. ADN/A-3/Sindh Pre-arrest bail refused.