KHADIM HUSSAIN M. SHAIKH, J.----By means of this Criminal Bail Application, applicant Mudasir Nazar son of Amanat Ali, seeks pre-arrest bail in case, emanating from Crime No.80 of 2019. registered at Police Station B-Section Tando Allahyar, for offence under sections 302, 34, P.P.C, after his plea for anticipatory bail has been declined by the learned 1st Additional Sessions Judge, Tando Allahyar, by dismissing his bail application vide order dated 30.11.2019.
2. Briefly the Facts of the case are that complainant Zahid Aslam's sister Mst. Fozia, aged about 32/33 years was married with co-accused Mubashir Arain Son of Amanat Ali. It is alleged that Mst.
Fozia had been complaining that she was being subjected to domestic violence by her husband Mubashir Arain and her brother-in-law Mudasir Arain (the applicant), but on complainant's advice she remained there. On 29.09.2019 at about 05:40 p.m., co-accused Mubashir informed the complainant that his sister Mst. Fozia is not feeling well, who is being taken to Hospital at Tando Allahyar and he should come there. On such information, the complainant accompanying his brother Wahid Aslam went to Tando Allahyar by calling his brother-in-law namely Shakir Son of Mukhtiar Ahmed Arain, asking him to come to the house of his sister situated in Naseeba Colony, Tando Allahyar, where they came to know that Mubashir Arain and others had taken the complainant's sister Mst. Fozia to Hyderabad for treatment. After a while, co-accused Mubashir informed the complainant on cell phone that Mst. Fozia had died and then her dead body was brought at home, where they had seen several injuries on the person of Mst. Fozia. The complainant, his brother Wahid Aslam and his brother-in-law Shakir had found that the room of Mst. Fozia was not in good condition and household articles were lying on earth. Then, they took dead body of their sister Mst. Fozia for post-mortem to Civil Hospital Tando Allahyar where police also came and then after post-mortem, the dead body of deceased Mst. Fozia was handed over to them and after funeral ceremony the complainant appeared at Police Station B-Section Tando Allahyar and lodged the subject FIR. It is further alleged that earlier on 29.09.2019, co-accused Mubashir had informed the police of P.S. B-Section Tando Allahyar that his wife Mst. Fozia had taken poison and they brought her at Civil Hospital Hyderabad but she died and they were bringing back her dead body to Tando Allahyar. Such entry bearing No.16 was made in the daily diary at 2100 hours. Co-accused Mubashir was arrested during the investigation and after completing investigation, he was sent-up with the challan to face his trial, showing present applicant Mudasir as absconder therein. The applicant sought for anticipatory bail, which has been declined by dismissing his bail application by the learned Trial Court vide Order dated 30.11.2019, hence this bail application.
3. The learned Advocate for the applicant has mainly contended that there is delay of more than 24 hours in lodgment of the FIR that no specific role is assigned to the applicant; that there is no eye witness of the alleged incident; and, that case requires further inquiry into the guilt of the applicant. The learned counsel prays that this bail application may be allowed and interim pre- arrest bail earlier granted to the applicant vide order dated 16.12.2019 may be confirmed.
4. The learned Advocate for the complainant has mainly contended that the applicant and his brother Mubashir, who was husband of deceased Mst. Fozia, are involved in this heinous offence involving perpetrated domestic violence on an innocent lady Mst. Fozia, who was also administered poison by the accused including the applicant resultantly she died; that the applicant is nominated in the FIR that the applicant along-with co-accused Mubashir had been subjecting deceased Mst. Fozia of domestic violence; that co-accused Mubashir himself had laid information to the police that deceased Mst. Fozia had herself taken poison, but there were several injuries on various parts of body of deceased Mst. Fozia, which have been suppressed by the accused. The learned counsel prays that the applicant is not entitled to the concession of grant of pre-arrest bail.
5. Learned Assistant Prosecutor General, endorsing the contentions of the learned counsel for the complainant, has opposed the grant of bail, to the applicant and prays for dismissal of this Criminal Bail Application.
6. I have considered the submissions of learned counsel for the parties and have gone through the material brought on the record and the police file with the assistance of learned Assistant Prosecutor General.
7. From a perusal of the record it would be seen that the name of the applicant finds place in the FIR: the PWs in their statements under section 161, Cr.P.C. have supported, the version of the complainant; this case involves allegation of subjecting an innocent house lady Mst. Fozia to perpetrated domestic violence, who was allegedly administered poison by the accused and she died; to-accused Mubashir himself had laid the information to the police about taking of poison by deceased Mst. Fozia, but the provisional post-mortem report reveals that deceased Mst. Fozia had also five injuries on different parts of her body, which prima facie shows that she was subjected to domestic violence, but the aforesaid injuries have been suppressed by the accused in their report, which adversely reflects upon them; there is no question of mala fide on the part of the complainant to falsely implicate the applicant in this heinous crime involving brutal murder of an innocent housewife, carrying capital punishment falling within the prohibitory clause of section 497, Cr.P.C. Under these circumstances, I am of the humble view that the applicant has failed to make out his case for grant of extraordinary concession of pre-arrest bail, more particularly, in view of the fact that the ingredients prescribed for grant of pre-arrest bail as laid down by the Hon'ble Supreme Court of Pakistan, are completely lacking in this case. In Criminal Petitions Nos.197-K to 204-K, 211-K to 221-K and 230-K of 2019 (Gulshan Ali Solangi and others v. The State) decided on 05-12-2019, the Hon'ble Supreme Court of Pakistan has held that: "Grant of pre-arrest bail is a remedy rooted into equity; at a cost to hamper the investigation, this judicial protection is extended, solely to save the innocent from the horrors of abuse of process of process of law with a view to protect his dignity and honour. It cannot be granted in every run of the Mill criminal case, particularly to the accused confronting prima Jack charges structured upon material/evidence, warranting custody too, on the basis of positions/pleas, verification whereof, is consequent upon recording of evidence."
In case of Rana Abdul Khaliq v. The State and others (2019 SCMR 1129), the Hon'ble Supreme Court of Pakistan has held that: "Grant of pre-arrest bail is an extra-ordinary remedy criminal jurisdiction; it is diversion of usual course of law, arrest in cognizable cases; a protection to the innocent being bounded on trump up charges through abuse of the process of law, therefore a petitioner seeking judicial protection is required to reasonably demonstrate that 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."
8. In view of what has been stated above, this bail application being devoid of merit is liable to be dismissed. These are the reasons of short order announced by me on 27.02.2020, whereby this Criminal Bail Application was dismissed and ad-interim pre-arrest bail earlier granted to the applicant vide order dated 16.12.2019 was re-called and the applicant was directed to surrender himself before the concerned Court immediately.
9. The observations made hereinabove are tentative in nature, only for the purpose of deciding this bail application, which shall not influence the learned Trial Court at the time of decision of the subject Sessions case.