IN THE HIGH COURT OF SINDH, CIRCUIT COURT,LARKANA

1^st Criminal Bail Application No.S-99 of 2021

Applicant(s):                                      Ameer Bux and 04 others

Through Mr. Rafique Ahmed K. Abro, Advocate.

The State:                                          Through Mr. Muhammad Noonari,

Deputy Prosecutor General.

Date of hearing:                               09-04-2021

Date of Order:                                   09-04-2021

O R D E R

ZULFIQAR ALI SANGI, J.-Through the captioned bail application, applicants Ameer Bux, Habibullah, Ubedullah, Nasrullah and Naseer seek their pre-arrest bail in case, emanating from F.I.R. No.05/2021, registered at Police Station Dilmurad, for offence under Sections 506/2, 395 P.P.C. Earlier their bail plea was declined by the learned Additional Sessions Judge-II, Jacobabad, vide order dated 24.02.2021.

 2.        Concise facts of the case are that complainant Muhammad Rahim, lodged FIR on 02.02.2021 at 1130 hours, stating therein that, there is dispute with applicants/accused on agricultural land. On 22.11.2020, he along with his relatives namely Muhammad Ibrahim and Mir Muhammad, were working in land and heard noise of cutting trees and saw accused Ameer Bux, Habibullah, Ubedullah, Naseer, armed with hatchets, accused Nasrullah armed with TT pistol and two unknown culprits, they were cutting trees and loaded on trolley, complainant party resisted on which applicants/accused asked that, trees planted on land belong to them and they had sold trees in Rs.5,000,00/- and issued threats of dire consequences. Thereafter, all accused went away from place of wardhat along with trees, hence such FIR.

3.          Learned counsel for the applicants submits that , applicants/accused are falsely involved due to dispute on land, that there is delay in lodging FIR, which was lodged after getting order from Justice of Peace; that land in dispute belongs to applicants/accused and both parties before Executing Court had admitted that prior to filing of partition Suit, Judgment debtors alienated their shares and sold out their Survey No. 194, 195, 356 admeasuring about 18 acres to applicants/accused Ameer Bux Khoso in year 2007. He next contended that, how it is possible that in very short time, applicants/accused cut trees and loaded on tractor-trolley without heavy machinery, and complainant party mentioned value of trees Rs.5,000,00/-, but memo shows few trees have been cut, therefore, bail may be granted.  In support of his contentions he relied upon the case of Shehzore and another v. the State (2006 YLR 3167) (Karachi).

4.                     On the other hand, learned Deputy Prosecutor General in view of the aforementioned submissions and after going through the impugned order wherein it has been mentioned by the court that there is civil litigation between the parties has conceded for the confirmation of interim pre-arrest bail.

5.                     I have considered the submissions of learned counsel for the parties and have gone through the material available on the record and the police file with the assistance of learned Deputy Prosecutor General.

6.                     Admittedly, the delay in registration of FIR has not been explained properly by the complainant and the applicants/accused caused not harm to the complainant party though they were available with hatchets and pistol even no allegation of aerial firing in the air is mentioned in the FIR; the offence for which the applicant is charged, does not fall within the prohibitory clause of Section 497(2) Cr.P.C. The grant of bail in cases covered under the said provision is rule and refusal is an exception. Reliance is placed in cases of Tariq Bashir v. The State (PLD 1995 SC 34) and Muhammad Tanveer V. The State and another (PLD 2017 SC 733).

7.                     Deeper appreciation of evidence is not permissible at the stage of bail and the same is to be decided tentatively. From the tentative assessment of material available on record coupled with no objection given by the Deputy Prosecutor General,the applicant has made out their case for confirmation of pre-arrest bail. Accordingly, instant bail application is allowed and ad-interim pre-arrest bail earlier granted to the applicants vide order dated 5.03.2021 is hereby confirmed on the same terms and conditions.

8.                     The observations made hereinabove are tentative in nature only for the purpose of deciding the instant bail application, which shall not, in any manner, influence the learned Trial Court at the time of final decision of the subject case.

J U D G E

S.Ashfaq..