ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl.Bail Appln.No.S-399 of 2020

 

Date of hearing

 

Order with signature of Judge

 

 

                                    For hearing of bail application.

05.10.2020

 

Mr.Ahmed Bux Abro, Advocate for the applicant

Mr.Muhammad Hashim Soomro, Advocate  for  the complainant

                        Mr. Muhammad Noonari, D.P.G for the State

                                                ~.~.~.~.~.~.~.~.~.~.~

 

IRSHAD ALI SHAH, J.- It is alleged that the applicant with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, not only caused lathi blows to complainant Liaquat Ali and his son Dawood, but threatened them to be killed, for that the present case was registered.

2.        The applicant was admitted to pre-arrest bail by learned 2nd Additional Sessions Judge, Qamber, with condition that in case the injuries sustained by the injured are opined by the medical officer to be non-bailable, then the same shall be treated as cancelled.

3.        Subsequently, one of the injury sustained by injured Dawood was opined to be non-bailable by the medical officer concerned, therefore, the pre-arrest bail granted to the applicant was presumed to have been cancelled. It is in these circumstances, the applicant has approached this Court for grant of pre-arrest bail by way of instant bail application under section 498 Cr.P.C.

4.        It is contended by learned counsel for the applicant that the applicant being innocent has been involved in this case falsely by the complainant party; the FIR has been lodged with delay of about three days; the offence alleged against the applicant is not falling within the prohibitory clause of Section 497 Cr.PC; Co-accused Ghulam Ali and two others have already been admitted to bail; the parties are already disputed over the landed property, therefore, the applicant is entitled to concession of pre-arrest bail on point of malafide and further inquiry.

5.        Learned D.P.G for the State has recorded no objection to grant of pre-arrest bail to the applicant. However, the learned counsel for the complainant has opposed to grant of bail to the applicant by contending that PW Dawood has sustained fracture on his right arm at the hands of the applicant.

6.        I have considered the above arguments and perused the record.

7.        If the final medical certificate in respect of the injuries sustained by PW Dawood was awaited, then learned 2nd Additional Sessions Jude, Qamber, ought not to have made disposal of the bail application of the applicant with conditional order. It was not only novel but contrary to the mandate contained by Article 10-A of Constitution of Islamic Republic of Pakistan, 1973, which prescribes the right of fair trial to every citizen for determination of civil/criminal rights and obligations. Be that as it may, the FIR of the incident has been lodged with delay of about three days and such delay having not been explained plausibly could not be overlooked. The offence alleged against the applicant is not falling within the prohibitory clause of section 497 Cr.PC. Co-accused Ghulam Ali and two others have already been admitted to bail. On examination, the opinion of the medical officer in respect of one of the injury sustained by PW Dawood has been declared to be incorrect by the Medical Board, with an addition that such injury is result of his fall on the ground. The parties are already disputed over the landed property. In that situation, malafide on the part of complainant party to implicate the applicant in this case falsely could not be ruled out.

8.        In case of Khalil Ahmed Soomro and others Vs. The State    (PLD 2017 SC-730), the Hon’ble Apex Court has held that;

“----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”.

9.        In view of above, the interim pre-arrest bail already granted to applicant is confirmed on same terms and conditions.

10.      The instant bail application is disposed of accordingly.

 

                                                                                                                  JUDGE

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