2025 PLP 872 (MLD)

Amjad Ali Sahito, J.

Through instant criminal bail application, the applicant, seeks post arrest bail in Crime No.91/2024, registered at Police Station Waggan (PP Lalu Rounk), for offence under sections 302, 34, P.P.C. Before on this he filed such on application but the same was turned down by the Court of 1st. Additional Sessions Judge/MCTC, Kamber vide Order dated 02.12.2024; hence he filed instant criminal bail application.

2. The details and particulars of the FIR are already available in the bail application, same could be gathered from the copy of FIR attached with such application, hence, needs not to reproduce the same hereunder.

3. Per learned counsel the applicant/accused is innocent and has been falsely implicated in this case; that this is an unseen incident and there is no role against the applicant/accused. He has also relied upon a letter dated 07.10.2024 wherein the claim of the learned Counsel for the applicant claims that the applicant was present before the Consumer Protection Court at Kamber, however, when it was inquired whether there is any case diary, he replied negative and lastly prayed for grant of bail. In support of his contention he relied upon the case of Sajid v. Samin ur Rehman (Deceased) through his father and others (2021 SCMR 138) and Sanaullah Khuharo and others v. The State (2020 PCr.LJ Note 59).

4. On the other hand complainant present in court as well as learned Additional Prosecutor General, Sindh vehemently opposed the grant of bail and states that sufficient material is available on the record as he has participated in the commission of offence as such he is not entitled for the grant of bail.

5. Heard and perused.

6. The case of prosecution is that son of the complainant was booked in a theft case and he was arrested by SHO, Masroor Ali Shah, ASI Zafar Ali, and PC Habibullah/present applicant in crime No. 90/2024 by police of police station P.S. Wagan for an offence under section 381-A, 511, P.P.C. The complainant and other villagers went to the police post Lalu Rank and inquired whereabouts of his son but no one was ready to inform him about his son. After passing some time the complainant came to know that the dead body of his son Fateh Muhammad was lying at Taluka Hospital Warah. The complainant along with his witness went to Tulka Hospital, where they saw the dead body of deceased Fateh Muhammad and found injuries on the different parts of the dead body and also on the neck.

7. From the perusal of the record it appears that during his detention at the police station deceased Fateh Muhammad was miserably tortured by the SHO, Masroor Ali Shah, ASI Zafar Ali, and PC Habibullah and other Police officials at the police station. Resultantly he died at the police station; as such this is a case of police custodial death. Further procedure also provided in the law that, if any person has been killed by another person or in police custody the report shall be sumitted before the nearest Magistrate under Section 174, Cr.P.C Section 176, Cr.P.C also provides a mechanism for how to hold an inquiry by a Magistrate into the cause of death when any person dies while in the custody of the police. But in the instant case to destroy the evidence, the police party left the dead body of the deceased at the hospital and flew away. The prosecution witnesses supported the version of the complainant. No ill will or mala fide has been pointed out by the learned counsel for the applicant for false implication into the case. Reliance is placed in the case of Ghulam Raza Soomro v. The State (2000 SCMR 1645).

8. The concession of pre-arrest bail cannot be allowed to an accused person unless the Court feels satisfied with the seriousness of the accused person's assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local police but not a word about this crucial aspect of the matter is found as no mala fide is made on the part of the complainant to believe that the applicant/accused has been implicated in this case falsely. Further, in additional to the above, I would like to mention that the grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is the diversion of the usual course of law, arrest in cognizable cases; a protection to the innocent being hounded on trump up charges through abuse of process of law, therefore, an applicant seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humilitate him with taints of mala fide, it is not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation. In this regard, reliance is placed on the case of 'Rana Abdul Khlaiq v. The State and others' [2019 SCMR 1129].

9. It is well-settled principle of law that the deeper appreciation of evidence is not permissible at the bail stage and only tentative assessment is to be made. The reliance in this context is made to the case of 'Mehmood Akhtar v. Nazir Ahmed' [1995 SCMR 310]. Sufficient material is available on record which connects the applicant/accused with the commission of the alleged offence. The case laws relied on by learned counsel for the applicant/accused are distinguishable from the facts and circumstances of the instant case.

10. In view of the above, the applicant has failed to bring his case for further inquiry as envisaged under subsection (2) of section 497, Cr.P.C Consequently, the interim pre-arrest bail granted by this Court to the applicant/accused vide order dated 05.12.2024 is hereby recalled and the bail application is dismissed.

11. Learned Additional Prosecutor General, Sindh requests for custody of the applicant/accused as such he is taken into custody and handed over to the SHO, P.P Lalu Raunk Police station Wagan for further investigation.

12. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial court while deciding the case of either party at trial. SA/H-3/Sindh Application dismissed.