KARACHI: The Sindh High Court has dismissed the application of an accused seeking pre-arrest bail in a rape case and said that such concession could not be granted unless the court was satisfied that intended arrest was being actuated by mala fide intention on the part of complainant party or police.

The SHC also observed that as per record, the complainant/victim was divorced by her previous husband and being poor she used to purchase grocery items on part-payment from the applicant, who was a shopkeeper.

Subsequently, the applicant started to exploit her poverty and raped her and now she was two months pregnant as such sufficient evidence was available against him, it added.

A case was lodged against the applicant earlier this year for allegedly raping the complainant within the limits of Zaman Town police station.

The accused approached the SHC as a sessions court had dismissed his pre-arrest bail application in March.

After hearing both sides, a single-judge bench of the SHC headed by Justice Amjad Ali Sahito turned down the bail application and resultantly, the interim pre-arrest bail granted to the applicant on March 18 was also recalled.

The lawyer for applicant argued that the accused had been framed in the case as he was a shopkeeper and used to give grocery items to the complainant free of cost as she was below the poverty line.

The counsel submitted that when the applicant refused to give her grocery, she lodged a false FIR against him and otherwise he had not committed any such offence while the FIR was also registered after a delay of three months.

He also contended that there was no medical evidence nor DNA had been conducted while no independent witness had been cited and pleaded for confirmation of interim bail.

On the other hand, an additional prosecutor general vehemently opposed confirmation of interim bail on the ground that the complainant was two-month pregnant, claiming the applicant for committing rape with her and the solitary statement of the victim was sufficient ground to connect the applicant with the commission of offence.

The bench in it order said that as per record, the complainant was divorced and being a poor lady, she used to purchase grocery items on part-payment from the applicant who started to exploit her poverty and subjected her to rape.

“The offence in which the applicant has been charged falls within the prohibitory clause, which is punishable with death or imprisonment for a term not less than 10 years and more than 25 years. The sufficient material is available on record to connect the applicant. At bail stage, only tentative assessment is to be made. No malafide or ill-will or enmity has been pleaded by the applicant/accused, which could be the ground for his false implication in this case”, it added.

The bench also noted that the concession of pre-arrest bail cannot be allowed to an accused person unless the court was satisfied with the seriousness of the accused person’s assertion regarding his intended arrest being actuated by mala-fide intent on the part of the complainant party or the local police but not a word about this crucial aspect of the matter was found as no mala-fide claim was made on the part of the complainant to believe that the applicant/accused had been implicated in the case falsely.

“In addition to the above, I would like to mention that grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is a diversion of the usual course of law, arrest in cognizable cases; protection to the innocent being hounded on trump up charges through abuse of process of law, therefore, an applicant 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 the investigation”, it concluded.

Published in Dawn, July 23rd, 2024