IN THE HIGH COURT OF SINDH CIRCUIT COURT

LARKANA.

                                               

Crl. Bail Appln. No. S- 204 of 2021.

 

Applicant:                 Arz Muhammad Khoso, through Mr. Muhammad Afzal Jagirani, Advocate.

 

The State:                  Through, Mr. Muhammad Noonari, DPG.

 

Complainant:                        Mst. Gul Naaz, through Ms.Asiya Agha, Advocate.

 

Date of hearing:        19.07.2021.

Date of order:           26.07.2021.

 

O R D E R

 

Adnan-ul-Karim Memon, J: -Applicant Arz Muhammad son of Noor Muhammad Khoso seeks indulgence of this court against the order dated 15.04.2021, passed by the learned Additional Sessions Judge-II, Jacobabad, whereby post-arrest bail was denied to him in FIR No.47 dated 04.03.2021, registered at Police Station Saddar, Jacobabad, for offenses under Sections 337-A (i), 337-F (i), 337-F(v),506 (2) and 34 P.P.C. Before approaching learned Sessions Judge, the applicant had filed similar application before learned trial Court i.e. Court of 2^nd Civil Judge and Judicial Magistrate, Jacobabad, which was dismissed vide order dated 27.3.2021.

 

2.         The accusation against the applicant is that on 28.02.2021, the applicant along with his accomplices caused lathi blows to the complainant on her left finger and other parts of body and her husband on his face; such a report of the incident was made to Police Station Saddar, Jacobabad on 04.3.2021.

 

3.         Ms. Asiya Agha learned counsel for the complainant has argued that the applicant Arz Muhammad is nominated in the FIR with the specific role of causing lathi blows to the complainant; resultantly she sustained injuries on her right-hand finger and other parts of the body. She further argued that memo of injury is available on record which also shows injury on the right-hand finger of the complainant; complainant-injured appeared at Hospital, got treatment and Medico-Legal Officer issued such Final Medical Certificate, wherein, injury inflicted to the complainant-injured on her right-hand finger was declared as Jurh-e-Ghayr Jaifah Hashimah punishable under Section 337-F (v) PPC which corroborates the version of the complainant-injured so also connects the applicant with the commission of the offense. Prosecution witnesses have implicated the present applicant in their statements recorded under section 161, Cr.P.C. with the same specific role; the applicant has failed to establish mala fide on the part of the complainant-injured or the police and medical officer for his false involvement in this case; and the offense under section 337-F(v) PPC is non-bailable and carries the imprisonment for the term which may extend to five years; and, it is settled law that no one can claim the bail as right in the non-bailable offense even though the same does not fall within the prohibitory clause of section 497 Cr.P.C.

 

4.         I have heard the learned counsel for the parties and gone through the record.

 

5.         Although, the applicant has been shown in the F.I.R, which is lodged after 4 days. Prima-facie, as per contents of the mashirnama of injuries the complainant sustained one injury, whereas Medico-Legal Certificate dated 02.3.2021 shows 3 injuries, which requires thorough probe by the learned trial court after the recording of evidence, however, the said injuries carry the imprisonment for the term which may extend to five years, which does not fall within prohibitory clause of Section 497 Cr.P.C. Primarily, the mode and manner of commission of the offense is generalized based on an old matrimonial dispute between the parties. Even the weapon allegedly used by the applicant is not recovered as per the investigation report. Even during the investigation, nothing was brought forth contrary to the earlier stance of the complainant and other prosecution witnesses. Prima-facie the Medical reports of injured/complainant conflict with mashirnama of injuries as discussed supra. It has been pointed out that post-arrest bail of         co-accused nominated by the complainant was granted vide order dated27.3.2021 by the learned trial Court. The aforesaid aspect brings the case of prosecution squarely a case of further inquiry, attracting provision of section 497(2) Cr.P.C. Even during the investigation, nothing was recovered being incriminating to strengthen the prosecution version. Primarily, the contention raised by the learned DPG assisted by learned counsel for the complainant will not improve the prosecution case at the bail stage.

 

6.         Before parting with this order, it is important to note that the Honorable Supreme Court in its recent pronouncement has held that the courts below have not been exercising their discretion while declining bail to the accused, under subsection (1) of Section 497 Cr. P.C, under the principle of law enunciated by the Honorable Supreme Court regarding grant of bail in offenses not falling within the prohibitory clause of that subsection. It is further held that the learned courts below simply relied, for declining bail, on the incriminating material available on the record to connect the accused with the commission of the offenses alleged. Though it is well-settled law that if the offenses alleged against the accused do not fall within the prohibitory clause of subsection (1) of Section 497 Cr. P.C and thus attract the principle that grant of bail in such offenses is a rule and refusal an exception;and, as authoritatively enunciated by the Honorable Supreme Court in its several cases.

 

7.         Besides above the main purpose of keeping an under-trial accused in detention is to secure his attendance at the trial so that the trial is conducted and concluded expeditiously or to protect and safeguard the society if there is an apprehension of repetition of offense or commission of any other untoward act by the accused. Therefore, to make the case of an accused person fall under the exception to the rule of the grant of bail in offenses not covered by the prohibitory clause of Section 497(1) Cr. P.C, the prosecution has to essentially show from the material available on the record, such circumstances that may frustrate any of the said purposes, if the accused person is released on bail.

 

8.         The basic principle in bail matters in such circumstances or such conduct of the accused person that may bring his case under the exceptions to the rule of granting bail. They include the likelihood of:

 

 (a)      his absconding to escape trial;

 (b)      his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or

(c)       his repeating the offense keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offense alleged.

 

9.         In view of the above, it is also essential to note that a court which deals with an application for grant of bail in an offense not falling within the prohibitory clause of Section 497(1) Cr. P.C must apply its judicious mind to the facts and circumstances of the case and the conduct of the accused person, and decline to exercise the discretion of granting bail to him in such offense only when it finds any of the above-noted circumstances or some other striking circumstance that impinges on the proceedings of the trial or poses a threat or danger to the society, justifying his case within the exception to the rule, as the circumstances mentioned above are not exhaustive and the facts and circumstances of each case are to be evaluated for application of the said principle.

 

10.       The Honorable Supreme Court has already cautioned the learned courts below in Muhammad Tanveer v. State PLD 2017 SC 733, in the following terms:

 

"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 Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding [under Article 189] on all Courts throughout the country including the Special Tribunals and Special Courts."

 

11.       In the present case, the learned trial Court has failed to adhere to the principle of law enunciated by the Honorable Supreme Court,as discussed supra, for the exercise of discretion to grant bail in offenses not falling within the prohibitory clause of Section 497(1), Cr.P.C.

 

12.       In the light of the principles set forth by the Honorable Supreme Court in post arrest bail matters, as discussed supra, the impugned order passed by the learned trial Court isthus not sustainable under the law and liable to be reversed on the aforesaid analogy. On the aforesaid proposition, I am fortified with the decisions of Honorable Supreme Court rendered in the cases of Tariq Bashir v. State PLD 1995 SC 34; Imtiaz Ahmad v. State PLD 1997 SC 545; Subhan Khan v. State 2002 SCMR 1797; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488.

 

13.       Keeping in view the facts and circumstances narrated above and law on the subject, I am of the considered view that the case of the applicant is of further inquiry fully covered by section 497(2) Cr. P.C entitling for the concession of post-arrest bail.

 

14.       The bail application is allowed and applicant Arz Muhammad is admitted to post arrest bail subject to his furnishing solvent surety in the sum of Rs.100, 000/- (One hundred thousand rupees only) and P.R bond in the like amount to the satisfaction of the trial Court.

 

15.       Needless to mention here that the observation hereinabove is tentative and wouldn't affect the merits of the case at the time of trial.

 

16.       However it is made clear that if the applicant misuses the concession of bail in whatsoever manner, and attempt to cause harm to the complainant or her witnesses, the trial is at liberty to cancel his bail, without reference to this Court.

 

 

 

                                                        JUDGE