ORDER   SHEET

IN  THE  HIGH  COURT  OF  SINDH, CIRCUIT  COURT,  LARKANA

Crl.Bail Appln.No.S-415 of 2021.

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DATE                                       ORDER WITH SIGNATURE OF HON’BLE JUDGE

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For hearing of bail application.

07.02.2022

                        Mr. Atta Hussain Qadri, Advocate for the applicants.

Mr. Abdul Khaliq Kalhoro, Advocate for the complainant.

Mr. Ali Anwar Kandhro, Addl.P.G for the State.

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IRSHAD ALI SHAH - J;- It is alleged that the applicants with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, caused lathies/iron rod blows to PWs Mst.Khairan, Mst.Anwar, Mst.Naziran, Gulzar and Imamuddin and then went away by making aerial firing to create harassment and insulting complainant Muhammad Achar, for that the present case was registered. 

                        The applicants on having been refused pre-arrest bail by learned           1^st Additional Sessions Judge/MCTC, Shikarpur, have sought for the same from this Court by way of instant application under section 498-A Cr.PC.

                        It is contended by learned counsel for the applicants that the applicants being innocent have been involved in this case falsely by the complainant in order to satisfy its matrimonial dispute with them; the FIR of the incident has been lodged with delay of about ten days; there is counter version of the incident and co-accused Ghulam Hyder with utmost similar role has already been admitted to bail by learned trial Court; therefore, the applicants are entitled to grant of pre-arrest bail on point of further inquiry, consistency and malafide.

                        Learned Addl.P.G for the State and learned counsel for the complainant have opposed to grant of pre-arrest bail to the applicant by contending that they have actively participated in commission of the incident by causing lathies/iron rod blows to the injured. In support of their contentions, they have relied upon case of Masood Ahmed alias Muhammad Masood and another Vs. The State (2006 SCMR-933).

                        I have considered the above arguments and perused the record.

                        The FIR of the incident has been lodged with delay of about ten days; such delay having not been explained plausibly could not be overlooked. There is counter version of the incident, which party is aggressor or aggressed upon, it requires determination at trial. The offence alleged against the applicants is not falling within prohibitory clause of Section 497 Cr.PC. The parties are already disputed over matrimonial affairs and co-accused Ghulam Hyder with utmost similar role has already been admitted to post arrest bail by learned trial Court. In that situation, no useful purpose would be served if the applicants are taken into custody and then are admitted to bail on point of consistency.

                        In case of Muhammad Ramzan Vs. Zafarullah and another              (1986 SCMR-1380), it was held by the Honourable Court that;

“no useful purpose was likely to be served if bail of accused(respondent) was cancelled on any technical ground because after arrest he could again be allowed bail on the ground that similarly placed other accused were already on bail”.

                        The case law which is relied upon by learned Addl.A.G for the State and learned counsel for the complainant is on distinguishable facts and circumstances. In that case, the element of malafide was lacking, while in the present case it is apparent.

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

                        The instant criminal bail application is disposed of accordingly.

      JUDGE