MUHAMMAD NAWAZ S/O GHULAM HUSSAIN (Applicant) VS THE STATE (Respondent)

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Cr. B.A. No. 591 of 2024 Cr. B.A. No. 592 of 2024

Date Order with signature of Judge

For hearing of bail applications.

REASONS DATED 04.05.2024

Mr. Nazir Ahmed, Syed Tajuddin and Zulfiqar Ali, Advocates for applicants a/w applicants Muhammad Javed and Muhammad Nawaz. Mr. Saleem Akhtar Buriro, Additional Prosecutor General. Ms. Amna Salman Ahmed, Advocate for complainant a/w complainant Saifullah Sachwani.

1.Applicants Muhammad Nawaz and Muhammad Javed are seeking pre-arrest bail in FIR No.223/2024, under Section 395 PPC, at P.S. KIA, Karachi.

2.The allegation against the applicants/accused is that on 17.02.2024 at about 01:30 a.m they in conjunction with other malefactors committed dacoity.

3.Learned counsel for the applicants/accused premised his case on the arguments that the applicants/accused are Junkman by profession and for the business purposes they purchased the cartons as alleged by the prosecution and such online banking transaction is also available on record, therefore, no offence is committed by the applicants/accused, hence they are entitled for concession of bail.

Learned counsel further articulated that the guilt of the accused is to be proved by the prosecution and the same be done only at the conclusion of the trial. While concluding his submissions, he

submitted that the settled principle of criminal jurisprudence is to admit the accused on bail to face the trial and answer the charge framed against him rather rot him behind the bars, therefore, the interim pre-arrest bail be confirmed.

4.On the other hand, learned counsel for the complainant assisted by learned Addl. P.G. argued that the 1844 cartons of goods were recovered from the possession of the applicants/accused and the same has also been admitted by the applicants/accused which fact is enough to form a prima facie view that the applicants/ accused are involved in the offence. She further contended that the applicants/ accused are charged with an offence which is against the society and that same is not bailable, therefore, the interim pre-arrest bail be recalled.

5.I have heard the submissions of learned counsel for the applicant as well as learned APG and scanned the available material.

It is an admitted fact that 1844 cartons of goods belong to the complainant were recovered from possession of the perpetrators which fact was also admitted by them. The offence with which applicants/accused are charged is heinous in nature and against the society as well as is not bailable.

6.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 applicant/accused has to satisfy the Court with regard to the basic conditions quantified under Section 497 of the Code of Criminal Procedure, 1898 (“Cr.PC”) vis-à-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 Abdul Khaliq Vs The State and others (2019 SCMR 1129), Hon’ble Supreme Court held that grant of pre-arrest bail is an extra ordinary remedy in criminal jurisdiction; it is a diversion of the usual course of law, arrest in cognizable cases; it is a protection to the innocent being hounded on trumped up charges through abuse of process of law, therefore an accused seeking judicial protection is required to reasonably demonstrate that the intended arrest is calculated to humiliate 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. Ever since the advent of Hidayat Ullah Khan's case (PLD 1949 Lahore 21), the principles of judicial protection are being faithfully adhered to till date, therefore, grant of pre-arrest bail essentially requires considerations of mala fide, ulterior motive or abuse of process of law, situations wherein Court must not hesitate to rescue innocent citizens; these considerations are conspicuously missing in the present case. While in the case of Rana Muhammad Arshad Vs Muhammad Rafique and another (PLD 2009 SC 427), the Hon’ble Supreme Court has discussed the framework and guidelines for granting bail before arrest under Section 498, Cr.P.C. by the High Courts and Courts of Session. It was held that the exercise of this power should be confined to cases in which not only a good prima facie ground is made out for the grant of bail in respect of the offence alleged, but also it should be shown that if the accused were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of

justice in relation to the case, but from some ulterior motive, and with the object of injuring the accused, or that the accused would in such an eventuality suffer irreparable harm. The Hon’ble Supreme Court again in the case of Aihtesham Ali v. The State (2023 SCMR

975)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 an accused 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.

7.It is settled principle of law while entertaining bail plea of any accused that Court has only to see whether accused is connected with the commission of crime or not. Furthermore, the question of granting or refusing bail depends upon particular circumstances of each case. The discretion of grant or refusal of bail under section 497

Cr.P.C must be exercised on judicial principles. Bail is always under the discretion of the Court and this discretion is necessarily to be exercised upon the facts and circumstances of each case according to sound judicial principles. The settled position of law is that accused cannot claim bail as a matter of right in non bailable offence. The facts and circumstances of each and every case are to be kept in mind while deciding bail application1.

8.This bail application was dismissed at the conclusion of the hearing vide short order dated 02.05.2024 whereby interim pre-arrest bail granted to the applicants was recalled. Above are the reasons of short order.

9.Before parting with the above, findings are tentative in nature which renders no help to any party.

JUDGE

Aadil Arab

1 PLD 1997 S.C 545 and 2002 SCMR 442