2020 PLP 1404 (MLD)

SHAMSUDDIN ABBASI, J.

Applicants Zulfiqar Ali and Naveed Ahmed seek pre-arrest bail in Crime No. 34 of 2019 registered at Police Station Sijawal, for offence under sections 302, 148, 149, P.P.C. after rejection of their bail plea vide order dated 27.07.2019 by learned Additional Sessions Judge-I, Shahdadkot.

2. The allegation against the applicants is that they along with other co-accused fired at deceased which hit him and resultantly he died at the spot.

3. It is contended by learned counsel for the applicants that there is inconsistency in between medical evidence and the ocular version as it is alleged in the FIR that all nine accused made fires at deceased, but in medical evidence deceased had received single firearm injury and it is yet to be determined as to who caused the fatal shot to deceased; that they have been falsely implicated by the complainant due to dispute over plot; he has relied on the case of Aamir Bashir v. The State (2017 SCMR 2060), Awal Khan v. The State (2017 SCMR 538) and Jaffar v. State (1980 SCMR 784).

4. On the other hand, learned D.P.G assisted by learned counsel for the complainant contended that applicants are nominated in the FIR with specific role, their presence has not been denied; motive has not been denied by the applicants; this is a heinous offence committed by applicants which comes within the prohibitory clause of section 497, Cr.P.C. They relied on the case of Muhammad Aslam v. State (2010 PCr.LJ 914), (2017 SCMR 482) and Aashique Ali Chandio v. The State (2016 MLD 1377)

5. Heard learned counsel for the applicants, learned counsel for the complainant, learned D.P.G and perused the material available on record. It is well settled proposition of law that provisions of pre-arrest bail could only be invoked, when an accused seeking concession of pre-arrest bail satisfies the Court on the point of mala fides on the part of complainant /prosecution for false implication in order to save innocent people from their un-justified humiliation and harassment at the hands of police or when no offence was either shown to have been committed or when from the bare reading of FIR, no offence was made out. The above ingredients are completely lacking in the present case, on the contrary learned counsel for applicants/ accused has admitted the dispute over plot in between the parties and, thus the motive is also directed against the applicants. At this stage I would like to take advantage of a case reported in 2016 SCMR 2064 re. Mukhtar Ahmad v. The State. The honourable apex Court has held as under:- "The said respondents had been admitted to pre-arrest bail by the High Court primarily upon the consideration that the offences allegedly committed by them did not attract the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. The High Court had failed to appreciate that the said consideration is hardly relevant to a case wherein what is sought is pre-arrest bail which is an extraordinary concession. This Court has repeatedly declared that the concession of pre-arrest bail cannot be allowed to an accused person unless the court feels satisfied about 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 to be found in the impugned orders passed by the High Court in the present case." In the present case FIR has been promptly lodged by complainant, the applicants came at the place of incident duly armed with Pistols and they fired at deceased. Prima facie there is sufficient material available on record to connect the applicants/accused in the commission of the offence, which falls within the prohibitory clause of section 497, Cr.P.C. and they have failed to establish their case on the point of mala fide on the part of prosecution. And as such the applicants are not entitled to grant of extraordinary concession of pre-arrest bail. In view of the above, instant pre-arrest bail application is dismissed and interim bail already granted to the applicants by order dated 29.08.2019 is recalled. Needless to mention here that the above observations are tentative in nature and would not prejudice case of either party. ADN/Z-29/Sindh Application dismissed.