IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA.

                                               

Cr.B.A.No.S-216 of 2021

 

 

Applicant:                                 Asghar Gahejo through his Advocate          Mr. Shakeel Ahmed G. Ansari.

 

The State:                                Through Muhammad Noonari, DPG.

 

Complainant:                            Ghulam Qadir Gahejo, in person.

 

Date of hearing:                        16.07.2021.

Date of order:                   16.07.2021.

 

Adnan-ul-Karim Memon, J: -        Through the captioned bail application, applicant Asghar Gahejo is seeking post-arrest bail in Crime No.32/2020 of Police Station Gaheja (Shikarpur). The allegations against the applicant are that he along with accomplices with common object committed lurking house-trespass by night having the intention to commit a crime and he caused hurts to the complainant near his eye however he managed to flee away from the spot, thus was booked for an offense under Section 457,380,511 and 459 PPC in crime No. 32 of 2020 of Police Station Gaheja, District Shikarpur. He being aggrieved by and dissatisfied with his arrest filed bail application No.1751 of 2020 before the learned Sessions Judge, Shikarpur, which was later on dismissed vide order dated 12.01.2021 on the premises that he committed lurking house-trespass by night to commit a crime. It is yet to be ascertained by the trial court whether the ingredients of an offense under Section 459 PPC are attracted in the present case or otherwise as well as the alleged injury caused to the complainant which was subsequently examined by the medical officer on 23.10.2020 which factum requires further inquiry into the guilt of the applicant. 

2.         I have heard the learned counsel for the parties and perused the material available on record.

3.         Primarily, the provision of Sec.497(2) Cr. P.C confers powers upon the Court to grant bail during investigation, inquiry, or trial subject to an opinion is formed by the Court that material placed before it is not sufficient to establish guilt and it still requires further inquiry into his guilt. It is settled law that a Court should decide the bail application of an accused regarding the sections mentioned in the FIR and not based on the penal provisions which it considers would also be attracted to the allegations leveled by the complainant. Barring a couple of exceptions, this rule has been consistently followed in bail matters by the Hon’ble Supreme Court in the case of Ch. Muhammad Anwar Samma etc. v. The State (1976 SCMR 168). In MirzaShaukatBaig and others v. Shahid Jamil and others (PLD 2005 SC 530), the Hon’ble Supreme Court said that the courts are obligated to diligently go through the record and carefully examine the nature of allegations to determine what legal provisions are attracted to the facts of the case. In this case, prima-facie, the prosecution story as narrated by the complainant is that on 22.10.2020 at 0030 accused/ applicant, along with his accomplices entered into his house to commit the heinous offense of theft; and, caused him to butt blows of a pistol near his left eye. Thus committed offenses punishable under sections 475, 380, 511, and 459 P.P.C. He reported such an incident to Police Station Ghaeja on 22.10.2020 at 1700 hours. However such injury as opined by the Doctor is Sujjaa-e-Khafifa vide Medical report dated 27.10.2020, after a delay of 5 days, with backdating, which factum needs to be probed by the learned trial Court, after recording of evidence. The record does not reflect that any recovery of the crime weapon was effected from the applicant, at the time of his arrest, as alleged by the complainant in the crime report, having been remained in police custody for sufficient time.The applicant is behind the bars since his arrest. Investigation in the case is complete and he is no more required for further investigation and keeping him behind the bars would serve no useful purpose. Thus, keeping in view the above facts and circumstances of the case, this Court is inclined to extend the concession of bail to the applicant in the above F.I.R.

4.         The intent behind the grant of bail is to safeguard the innocent person from the highhandedness of police/ complainant if any; and, very strong and exceptional grounds would be required to curtailing the liberty of the accused charged for, before completion of the trial, which otherwise is a precious right guaranteed under the Constitution of the country.

5.         Besides above In the case of Tariq Bashir V. The State (PLD 1995 SC 34) the Honorable Supreme Court has taken notice of stock of prevailing circumstances where under-trial prisoners are sent to judicial lock-up without releasing them on bail in non-bailable offences punishable with imprisonment of less than 10 years and held that “grant of bail in such offences is a rule and refusal shall be an exception, for which cogent and convincing reasons should be recorded.” While elaborating exceptions, albeit it was mentioned that if there is a danger of the offence being repeated if the accused is released on bail, then grant of bail may be refused but it is further elaborated that such opinion of the Court shall not be founded on mere apprehension and self-assumed factors but the same must be supported by cogent reasons and material available on record and not to be based on Surmises and artificial or weak premise. Even otherwise to ensure that the accused may not repeat the same offence, if released on bail, sufficient surety bonds shall be obtained through reliable sureties besides the legal position that repetition of the same offence would disentitle the accused to stay at large as bail granting order may be recalled in that event, therefore, such a ground should not be an absolute bar in the way of grant of bail. It may be noted that there is a sky-high difference between jail life and free life. If the accused person is ultimately acquitted in such cases then, no kind of compensation would be sufficient enough to repair the wrong caused to him due to his incarceration. It is settled principle of law that once the Legislature has conferred discretion on the Court to exercise jurisdiction in particular category of offences without placing any prohibition on such discretion.

6.         Once this Court has held in categorical terms that grant of bail in offenses not falling within the prohibitory limb of section 497 Cr.P.C. shall be a rule and refusal shall be an exception then, the subordinate Courts should follow this principle in its letter and spirit because principles of law enunciated by this Court under Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 is binding on all subordinate Courts. My view is supported by the decision rendered by the Honorable Supreme Court in the case of The State v. Syed Qaim Ali Shah (1992 SCMR 2192) and the famous case of Khan Asfandyar Wali and others v. Federation of Pakistan (PLD 2001 SC 607).

7.         I expect the Courts below to adhere to these binding principles in future and not to act mechanically in the matter of granting or refusal of bail because liberty of citizen is involved in such matters, therefore, same should not be decided in vacuum and without proper judicial approach

8.         In view of the facts and circumstances narrated above, I am of the considered view that learned trial Court has erred in appreciation of law on the subject while rejecting the post-arrest bail of the applicants, hence, the same is set at naught, as a consequent I am of the considered view that the case of the applicants is of further inquiry fully covered under section 497(2) Cr.PC, entitling for the concession of post-arrest bail.

9.         Needless to mention here that observations made hereinabove are tentative and would not prejudice the case of either party at trial.

 

10.       These are the reasons for my short order dated 16.7.2021, whereby the applicant was granted post-arrest bail in the aforesaid crime.

 

JUDGE