IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
MR. JUSTICE JAMAL KHAN MANDOKHAIL
MR. JUSTICE MUHAMMAD ALI MAZHAR
MR. JUSTICE SYED HASAN AZHAR RIZVI

CRIMINAL PETITION NO.167-K OF 2022

(On appeal against the order dated 27.10.2022
passed by the High Court of Sindh, Circuit Court,
Larkana in Criminal Bail Application No. S-232 of
2022)

Fahad Hussain and another ….Petitioners

VERSUS

The State through Prosecutor General Sindh ..Respondent

For the Petitioner: Mr. Muhammad Sachal R. Awan, ASC

For the Complainant: In-person

For the Respondent: Mr. Hussain Bux Baloch,

Additional Prosecutor General, Sindh

Date of Hearing: 28.12.2022

Judgment

MUHAMMAD ALI MAZHAR, J. – By dint of this Criminal Petition,

the petitioners have called in question the order dated 27.10.2022
passed by the High Court of Sindh, Circuit Court, Larkana in
Criminal Bail Application No. S-232 of 2022 whereby the
petitioners’ application for pre-arrest bail was dismissed and ad-
interim bail order was recalled in FIR No. 23 of 2022 dated
11.04.2022, lodged under Sections 302 and 34, PPC at Police
Station Kakar, District Dadu.

2. The pith and substance of case as divulged from the contents of

FIR, are that the complainant’s sister, Mst. Nirma (“deceased”),
was married to Fahad Hussain (“petitioner No.1”) about sixteen or
seventeen months prior to the incident. It was further alleged that
the attitude of his brother in-law, the petitioner No.1, was not good
and he had illicit relationships with other women, which perturbed
Crl.P.No.167-K/2022 2

the deceased who tried to prevent the petitioner No.1 from such
activities which annoyed him and led to him extending threats to
the deceased that he will kill her. The complainant also alleged
that the deceased complained to her father-in-law but he did not
take any action and asked her to remain silent. On 10.4.2022 at
about 8.00 p.m., the deceased called the complainant and
informed him that the petitioner No.1, along with the other
accused Muhammad Khan and Mst.Hazooran were threatening to
murder her, therefore, the complainant, his mother, Mst. Noor
Khatoon, and his brother, Shahid Ali, left Kotri for village Ali Bux
Junejo and on 11.04.2022 at about 4.30 A.M, they reached the
house of his sister, the deceased, and heard cries coming from her
room. When they entered the room, they saw that the accused
petitioner No.1 was strangulating her with a Reshmi Dupata, (silk
scarf) while the accused Mst.Hazooran had caught hold of the
hands of the deceased and accused Muhammad Khan had caught
hold of her legs. Upon seeing this, the complainant, his brother
and his mother raised cries, causing the other villagers to come
and consequently, the accused persons vacated the house and
went away. The complainant party found marks of violence on her
chest, arms and leg and discovered that Mst.Nirma had died. It
was further alleged that the matter was conveyed to Kakar Police
who came and took the dead body but, due to the non-availability
of a lady doctor, no post-mortem was conducted, thereafter, the
complainant brought the dead body to the village and buried the
same and went to lodge an FIR which was initially not registered,
however, after making some protest, the FIR was registered.

3. The learned counsel for the petitioners argued that the

prosecution story is unbelievable. It was further averred that the
FIR was lodged after a delay of 9 days without any plausible
explanation. He further argued that the deceased committed
suicide in the absence of her husband, the petitioner No.1, and
that when the suicide was committed, the deceased’s brother,
namely Shahid Ali, was present in the house of the petitioner No.1,
and it was the deceased’s brother who removed the dead body and
then informed the petitioner No.1 who was at the shop. He further
argued that even while answering a media reporter, the brother of
the deceased disclosed that his sister had committed suicide. He
Crl.P.No.167-K/2022 3

further argued that the complainant party did not allow the
doctors to conduct a post-mortem and they remained silent. He
further argued that no efforts were made by the complainant party
to overpower the accused persons if they were committing the
deceased’s murder in the presence of the complainant party at the
alleged scene of crime. He concluded that the case requires further
inquiry and the petitioners are entitled to the confirmation of ad-
interim bail as they have been implicated with mala fide intention
in order to humiliate and disgrace them on the instigation of the
complainant.

4. The Additional Prosecutor General, Sindh argued that, keeping

in view the final conclusion drawn by the Special Medical Board in
the Post-mortem Report of the exhumed body of the deceased the
cause of death could not be determined, so at this stage it could
not be resolved whether it was a case of murder or suicide.

5. Heard the arguments. According to the FIR, the incident

occurred on 11.04.2022 at 4:30 a.m., while the FIR was lodged by
the complainant on 20.04.2022, though the complainant
attributed the cause of delay to the police that after some protest
the FIR was lodged but no details of the alleged protest are
mentioned. The complainant has narrated in the FIR that when he
along with his mother, Mst. Noor Khatoon, and brother, Shahid
Ali, reached the house of the deceased, they heard a hue and cry
from her room and when they entered the room, the petitioner No.
1 was asphyxiating her, while Mst. Hazooran was sitting over the
deceased holding her hands and Muhammad Khan was holding
her feet to immobilize her. Upon seeing this the complainant and
his brother and mother raised cries which attracted villagers due
to which the accused persons left the house but no name of any
villager is mentioned in the FIR who came at the scene of crime.
Nothing is mentioned in the FIR that despite presence of the
complainant and his brother along with the mother at the crime
scene, whether any efforts were made by them to overpower the
culprits in order to save the life of the deceased. According to the
complainant, the post-mortem could not be conducted due to the
non-availability of a lady doctor, hence the deceased was buried
without conducting a post-mortem. On the contrary, according to
the interim report filed under Section 173 Cr.P.C dated 20.4.2022,
Crl.P.No.167-K/2022 4

the parents of the deceased shown the incident as suicide. It is

further mentioned that letter for postmortem was issued but the
complainant and his brothers did not allow the doctor to conduct
postmortem and thereafter, the parents of the deceased forcibly
took the dead body from hospital and buried it without
postmortem. It is further stated in the report that the complainant
has not produced eye witness of the case to record their statement
hence investigation was not concluded. According to the Scrutiny
Memo of the Assistant District Public Prosecutor, Dadu dated
15.08.2022 appended to the police papers, the dead body of the
deceased was exhumed in compliance of the order dated
30.04.2022 passed by the learned IInd Judicial Magistrate, K.N.
Shah, on 02.06.2022 in the presence of mashirs (witnesses) and
the post-mortem was conducted on the same day. Following the
post-mortem, the Special Medical Board constituted for the post-
mortem tendered a provisional conclusion wherein they rendered
unanimous opinion that at this belated stage the soft tissues of the
neck and other sites were decomposed and only hard tissues were
found intact. It was further opined that no anatomical cause of
death attributable to violence over neck and other parts of body
could be ascertained, however, it was mentioned that final report
will be communicated after receiving the Chemical Examiner’s
Report. After receiving the Chemical Examiner’s Report dated
04.07.2022, the Special Medical Board unanimously concluded
that the cause of death of the exhumed dead body of the deceased
remained undetermined.

6. The perception and discernment of the expression “further

inquiry” is a question which must have some nexus with the result
of the case and it also pre-supposes the tentative assessment
which may create doubt with respect to the involvement of accused
in the crime. The raison d'etre of setting the law into motion in
criminal cases is to make an accused face the trial and not to
punish an under trial prisoner or let him rot behind the bars. It is
a well settled principle of the administration of justice in criminal
law that every accused is innocent until his guilt is proved and this
benefit of doubt can be extended to the accused even at the bail
stage, if the facts of the case so warrant. The basic philosophy of
criminal jurisprudence is that the prosecution has to prove its case
Crl.P.No.167-K/2022 5

beyond reasonable doubt and this principle applies at all stages

including pre-trial and even at the time of deciding whether
accused is entitled to bail or not which is not a static law but
growing all the time, moulding itself according to the exigencies of
the time. In order to ascertain whether reasonable grounds exist or
not, the Court should not probe into the merits of the case, but
restrict itself to the material placed before it by the prosecution to
see whether some tangible evidence is available against the
accused person(s). Reasonable grounds are those which may
appeal to a reasonable judicial mind, as opposed to merely
capricious, irrational, concocted and/or illusory grounds. However,
for deciding the prayer of an accused for bail, the question whether
or not there exist reasonable grounds for believing that he has
committed the alleged offence cannot be decided in a vacuum.

7. In the case of Aamir Bashir and another Vs. The State and
others (2017 SCMR 2060), this Court held that besides making
out a prima-facie case for the grant of pre-arrest bail, the accused
petitioner has to show some mala fide on the part of the
complainant and the investigating agency, motivated by caprice
and ulterior motive to humiliate and disgrace the accused person
in case of arrest, however, at bail stage, except in very rare cases,
it is difficult for an accused person to furnish tangible proof about
the element of mala fide or foul play on the part of the complainant
or the arresting agencies, therefore the Court has to look at the
material available on record and draw inferences therefrom about
the mala fide or ulterior motive on account of which the intended
arrest of the accused is motivated. The Court also reiterated the
guiding principles laid down in the case of Khalid Javed Gillan v.
The State (PLD 1978 SC 256), that while deciding bail petitions
only a tentative assessment of the material and facts available on
record is to be made and deeper appreciation of the same shall be
avoided and that any fact which may not be sufficient to cast
doubt of absolute nature on the prosecution case, but equally
sufficient to be considered for grant of bail, cannot be lightly
ignored.

8. We have cautiously scanned and ruminated the material placed

on record and reached to a tentative assessment that whether it is
a case of suicide or murder, this can only be resolved and
Crl.P.No.167-K/2022 6

determined by the trial court after full-fledged trial of the case but
keeping in view the present set of circumstances, the case of the
petitioners requires further inquiry.

9. As a result thereof, this criminal petition is converted into an

appeal and allowed. The ad-interim pre-arrest bail already granted
by this Court on 20.12.2022 is hereby confirmed on the same
terms. It is emphasized that the observations made by us are
tentative in nature and shall not prejudice the case of either party
before the Trial Court. The petitioners are directed to join the
investigation and regularly appear in the Trial Court. In case they
misuse the concession of bail, the learned Trial Court will be at
liberty to cancel the bail.

Judge

Judge

Judge

Karachi,
28th December, 2022
Khalid.
Approved for reporting