ORDER
SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Bail
Application No.S-563 of 2021
Date |
Order with signature of Judge |
Applicants: Muhammad Musa and
others
through Mr. Saifullah Soomro, Advocate
Complainant: Abdul Razaque, thrugh
Mr.
Muhammad Farooque Ali, Advocate
State: Through
Mr.Khalil Ahmed Maitlo, DPG
Date of
hearing: 12.11.2021
Dated of
order: 12.11.2021
O R D E R
Zulfiqar
Ali Sangi, J: Applicants/accused Muhammad Musa, Muhammad
Essa, Ahmed Ali, Muhammad Ali, Asadullah, Mujeeb-ur-Rehman all sons of Shah
Nawaz, Ajab Gul, Sher Gul, both sons of Asadullah, Abdul Nasir son of Muhammad
Yakoob, Siraj Dulha, Sadaf Musa, both sons of Muhammad Musa, Zain-ul-Abdin son
of Adam, Abdul Waheed son of Rab Dino and Shoaib-ur-Rehman s/o Mujeeb-ur-Rehman
all by caste Mirani, are seeking pre-arrest bail in FIR No.56/2021, registered
at Police Station Baiji Sharif, District Sukkur, under sections 452, 147, 148,
149, 337-A(i), 337-F(i), 337-L(ii), 504, 506/2, and 324 PPC. Their earlier bail
application was dismissed by the learned Additional Sessions Judge, Pano Aqil, vide
order dated 31.08.2021. After rejection of their bail application, they
approached this court for the same relief.
2. Concisely
the facts of the prosecution are that on 23.09.2020 accused party had fought
with the complainant party over landed property and such FIR bearing No.72/2020
was lodged at PS Baiji Sharif, which was later on disposed of/cancelled due to
intervention of nekmards, however accused party remained annoyed. On 09.07.2021, complainant Abdul Razaque along
with relatives Muhkum Deen, Akhtar
Hussain, Muhammad Nawaz, Allah Wasayo, Naeem Yousif, Hamadullah, Waliyllah and Naveed
Ahmed were available in the house of Muhkum Deen where at about 7.30 p.m accused
Muhammad Musa, Muhammad Essa, Ahmed Ali Muhammad Ali having lathies, Asadullah,
Mujeeb-ur-Rehman having hatchets, Ajab Gul with pistol, Sher Gul empty handed,
Abdul Nasir with pistol, Siraj Dulah having lathi, Sadaf Musa having hatchet,
Sadam Hussain having lathi,
Zain-ul-Abbdeen having lathies, Abdul Waheed having hatchet, Shoaib-ur-Rehman
and Mushab having lathies, entered into the house and accused having pistols
asked to remain silent while accused Asadullah caused hatchet blow to Muhkum
Deen on his head, accused Essa and Ahmed Ali caused lathi blows to Akhtar
Hussain, accused Muhammad Ali caused lathi blow to Allah Wasayo, accused Saddam
Hussain and Zain-ul-Abdin caused lathi blows to Naeem Yusif, accused
Shoaib-ur-Rehman caused lathi blow to Hamadullah, accused musab caused lathi
blow to Muhammad Nawaz, accused Sadaf Musa caused back side of hatchet blow to
Naveed Ahmed, accused Abdul Waheed caused hatchet blow to Waliullah.
Complainant beseeched them in the name of Almighty Allah to which they issuing
threats went away. Complainant then brought the injured at PS and lodged the
FIR.
3. Learned
counsel for the applicants contended that the applicants have falsely been
involved by the complainant due to previous enmity which is admitted in the FIR.
He next contended that there is delay of two days in registration of FIR, which
has not been explained by the complainant. He also contended that prior to
this, complainant party had attacked upon the accused party and accused party
had lodged such FIR No.57/2021, as such in order to pressurize them, present
FIR was managed to falsely implicate the applicants. He further contended that all
the witnesses are close relatives of the complainant as such they are
interested. He further contended that all the sections to which the
applicants/accused are charged are bailable except sections 452 and 506/2 PPC
which too do not fall within the ambit of prohibitory clause of section 497
Cr.P.C, while application of section 324 PPC will be determined at trial after
recording evidence. In support of his contentions learned counsel for the
applicants placed reliance on the cases reported as 2020 SCMR 677, 2010 SCMR
1219, 2017 YLR Note 173, 2017 MLD 1299, 2019 YLR 1622, 2017 YLR 978 and an
unreported order of this court dated 31.01.2020 passed in Cr.B.A.No.S-630/2019.
Lastly He prayed that the interim pre-arrest
bail granted to the applicants may be confirmed.
4. Mr.
Muhammad Farooq Ali Advocate files vakalatnama on behalf of complainant and
submits that the applicants were nominated in the FIR with specific roles and
the offence falls within prohibitory clause of section 497 Cr.P.C, therefore,
they are not entitled for the relief claimed.
5. Learned
DPG adopted the contentions of learned counsel for the complainant and has
opposed the confirmation of interim pre-arrest bail.
6. I have heard the learned counsel for the parties and perused the material
available on record with their able assistance.
7. Admittedly there is delay of two days
in registration of FIR, which has not been properly explained by the
complainant. Sections 337-A(i), 337-F(i), 337-L(ii)
PPC are bailable, while sections 452 and 506/2 PPC do not fall within
prohibitory clause of section 497 Cr.P.C and grant of bail in these cases is a
rule and refusal is an exception, however, strong reasons for refusal are
required. Reliance is placed on the case of Tariq Bashir v. The State (PLD 1995 SC
34) and Muhammad Tanveer V. The State and another (PLD 2017 SC 733). So far
section 324 PPC is concerned, its applicability is to be considered by the
trial court after recording evidence of the prosecution witnesses. It is
settled principle of law that bail applications are to be decided tentatively
and deeper appreciation of evidence is not permissible.
8. From the tentative assessment of the
material available on record, I am of the view that the applicants have made
out the case for confirmation of their
pre-arrest bail, therefore, the interim pre-arrest bail already granted
to them by this court vide order dated 10.09.2021, is hereby confirmed on same terms and conditions.
9. Observations made herein above are
tentative in nature and will not cause any prejudice to either party at the
trial.
JUDGE
Suleman Khan/PA