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P L D 2017 Supreme Court 730

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147 views5 pages

P L D 2017 Supreme Court 730

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Logarithm Table
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P L D 2017 Supreme Court 730

Present: Dost Muhammad Khan, Qazi Faez Isa and Sardar Tariq
Masood, JJ

KHALIL AHMED SOOMRO and others---Petitioners

Versus

The STATE---Respondent

Criminal Petition No. 945 of 2017, decided on 28th August, 2017.

(On appeal from the order dated 17.7.2017 passed by the High Court of
Sindh at Karachi in Crl. Bail Application No. 1089 of 2017)

(a) Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV


of 1860), Ss. 337-A(i), 337-F(i), 337-F(vi), 337-L(2) & 504---Shajjah-i-
khafifah, ghayr-jaifah damiyah, ghayr-jaifah munaqqillah, other hurt,
intentional insult with intent to provoke breach of peace---Pre-arrest bail,
grant of---Mala fide of complainant---Offences with which accused
persons were charged were punishable by way of imprisonment which
did not fall within the prohibitory part of S. 497, Cr.P.C.---When the
accused persons were entitled to post arrest bail, their prayer for pre-
arrest bail, if declined, would be a matter of technicality alone---Accused
persons were likely to be humiliated and disgraced due to their arrest at
the hands of the local police---In the present case, it appeared that net
had been thrown wider and the injuries sustained by the victims except
one or two, had been exaggerated---Seemingly efforts had been made to
show that the offences fell within such provisions of law, which were
punishable with five years' or seven years' imprisonment---All said
aspects, when considered combindly, constituted mala fides on part of
complainant party---Accused persons were granted pre-arrest bail
accordingly.

(b) Criminal Procedure Code (V of 1898)---

----S. 498---Pre-arrest bail---Pre-conditions---Mala fide, inference of---For


grant of pre-arrest bail one of the pre conditions was that the accused
person had to show that his arrest was intended by the prosecution out
of mala fide and for ulterior considerations---At pre-arrest bail stage, it
was difficult for the accused to prove the element of mala fide through
positive/solid evidence/materials, therefore, the same was to be deduced
and inferred from the facts and circumstances of the case---Where
certain events or hints to such effect were available, the same would
validly constitute the element of mala fide.

(c) Police Rules, 1934---

----Vol. II, Ch. XXV, R. 25.19(1)---Medico-legal opinion---Description of


injuries by the Medico-legal Officer in the examination report---Scope---
Practice of describing the sections of penal law under which the injuries
fell by the Medico-legal Officer---Supreme Court deprecated such practice
by Medico-Legal officers and observed that they should not assume the
status of the prosecution/prosecutors, as such was neither their domain
nor they had lawful authority to direct or convey to the Investigating
Agency the nature of offence; that the Medico-legal Officers should (only)
describe the nature of injuries under the dispensation of law and not the
provision of law, under which it fell.

Shuaib Abbasi, Advocate Supreme Court and Raja Abdul Ghafoor,


Advocate-on-Record for Petitioners along with Petitioners.

Zafar Ahmad Khan, Additional P.-G. Sindh for the State.

Date of hearing: 28th August, 2017.

JUDGMENT

DOST MUHAMMAD KHAN, J.---Petitioners are seeking leave to appeal


against the short order of the High Court of Sindh at Karachi dated
18.8.2017 whereby interim pre-arrest bail granted to the petitioners on
17.7.2017 in case FIR No. 155/17 registered by Police Station Aziz Bhatti,
District East Karachi, for crimes under sections 337-A(i)/337-F(i)/337-F(vi),
337-L(2)/504, P.P.C. was recalled vide impugned short order.

2. Today this case was taken up in the morning however, the learned ASC
for the petitioners stated at the bar that the reasons for the short order
have not been given so far because they have not been supplied with the
copies of the detail reasons. The case was kept pending and it was taken
up at 12:10 p.m. and we asked the Court Associate as to whether office
has contacted the Registrar of the High Court of Sindh, at Karachi, he
replied in positive but stated that office asked for the detail reasons
which have not been written by the learned Judge.

3. We are constrained to show our displeasure because of the nature of


the order passed, as on one hand liberty of the citizens was taken back
while in such petty and short matters, details reasons are delayed and
that too without any justifiable reason. We hope that this practice would
not be repeated in future because that will have adverse effects and
repercussions on the working of the system and capability of the Judges,
who are occupying high pedestals in the superior judiciary. Well
concerted pointed fingers are raised by some quarters which could not
be defended on any premises whatsoever, therefore, individual does not
matter but the institution matters if its decorum and respect is
transgressed at any level.

4. On merits we have found that all offences of the above nature are
punishable by way of imprisonment which do not fall within the
prohibitory part of section 497, Cr.P.C. and when the petitioners are
entitled to post arrest bail thus, their prayer for pre-arrest bail, if
declined, would be a matter of technicality alone while on the other hand
they are likely to be humiliated and disgraced due to arrest at the hands
of the local police.

5. Although for grant of pre-arrest bail one of the pre conditions is that
the accused person has to show that his arrest is intended by the
prosecution out of mala fide and for ulterior consideration. At pre-arrest
bail stage, it is difficult to prove the element of mala fide by the accused
through positive/solid evidence/materials and the same is to be deduced
and inferred from the facts and circumstances of the case and if some
events-hints to that effect are available, the same would validly
constitute the element of mala fide. In this case, it appears that net has
been thrown wider and the injuries sustained by the victims except one
or two, have been exaggerated and efforts have been made to show that
the offences are falling within those provisions of law, punishable with
five years or seven years' imprisonment. All those aspects if are
combindly taken, may constitute element of mala fide.

6. Accordingly, leave to appeal is granted and this petition is allowed. The


petitioners are granted pre-arrest bail in the sum of Rs.30,000/- with one
surety each to the satisfaction of the Trial Court/Duty Magistrate.

7. Before parting with this judgment we have noticed in numerous cases


that Medico-legal Officers have assumed the status of the
prosecution/prosecutors by describing the sections of penal law under
which the injuries fall. This is neither their domain nor they have lawful
authority to direct or convey to the Investigating Agency the nature of
offence, but they should describe the nature of injuries under the new
dispensation of law and not the provision of law, under which it falls.

Copy of this judgment be sent to all the Registrars of the High Courts as
well as the Federal Secretary Health, Government of Pakistan and the
Prosecutor Generals of all the Provinces and also Islamabad for future
guidance and compliance by the Medico-legal Officers.
MWA/K-12/SC Bail grante
;

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