ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Bail Application No. S–349 of 2021

Date of hearing

Order with signature of Judge

 

For hearing of bail application

 

23.08.2021

 

Mr. Yar Muhammad Jalbani, Advocate for applicant.

Mr. Aftab Ahmed Shar, Additional Prosecutor General.

..............

           

After rejection of his earlier criminal bail application bearing No.109 of 2021 by the learned 3rd Additional Sessions Judge, Mirpur Mathelo vide order, dated 03.06.2021, the applicant/accused Ali Muhammad s/o Ali Nawaz Kolachi, through instant criminal bail application seeks pre-arrest bail in crime No.24/ 2021, registered under sections 337-A(ii), 337-A(i), 114, 147, 148, 504, P.P.C. at P.S. Belo Mirpur, District Ghotki. He was admitted to interim bail by this Court vide order, dated 08.06.2021.

 

2.         Briefly stated, the facts of the prosecution case are that, on 23.04.2021 at 1930 hours, complainant Mehrab Ali Kolachi, lodged the aforesaid F.I.R., alleging therein that he had dispute with accused party on landed property; that on 20.04.2021, at 1900 hours, he was standing in the street along with his brother Shaukat Ali and nephew Shaman Ali, when accused Ali Muhammad (applicant), Raza Muhammad, Zahid, Mubeen, Wali Muhammad came there duly armed with cudgels and on the instigation of accused Raza Muhammad, applicant/accused caused lathi blow on the head of Shaman Ali while co-accused Zahid Ali caused lathi blow to his brother Shaukat Ali on his head and then the accused went away abusing the complainant party.  

 

3.         Learned counsel for the applicant contends that the applicant is innocent and has falsely been implicated in this case; that there is un-explained delay of three days in lodging F.I.R., that instant F.I.R. is a counter blast of F.I.R. No.23/2021 lodged against the complainant party earlier by the accused Wali Muhammad regarding the same incident; that the alleged offences are bailable except offence under section 337-A(ii), P.P.C., which being punishable up to five years, does not fall within the prohibitory clause of section 497, Cr.P.C.; that there is an admitted enmity between the parties on the landed property and in that respect a civil suit filed by the applicant against the brother of the complainant, namely, Ali Murtaza has already been decreed in favour of applicant by the Court of Senior Civil Judge, Ubauro.

 

4.         On the other hand, learned Additional Prosecutor General opposes the grant of pre-arrest bail to the applicant on the ground that the applicant caused stick blow on the head of the injured P.W Shaman Ali and sufficient evidence is available with the prosecution to connect him with the alleged offence.

 

5.         Heard learned counsel for the applicant as well as Additional Advocate General and perused the material available on record with their assistance.

 

6.         In the instant case, lodgment of the FI.R. with delay of three days without plausible explanation leads to the presumption of consultation and deliberation, so also malice and ulterior motive, for lodging of F.I.R. Besides, it is an admitted position that earlier to instant F.I.R., co-accused Wali Muhammad had already lodged his F.I.R. bearing No. 23 of 2021 under sections 337-F(v) 337-A(i) 114, 147,148, P.P.C. at the same police station. So from both the sides certain injuries have been allegedly caused to both the parties. When both the F.I.Rs are taken in juxtaposition, the date, time, and venue of occurrence as well as parties are the same. Thus, the incident falls within the term of cross version. The prime consideration in cross version cases is as to who the aggressor was and who was aggressed upon and not the injuries caused to one party is greater than caused to other which is only a relevant factor. It is also an admitted position that the injury allegedly caused by the applicant to injured Shaman Ali has been declared by the MLO as “Shajjah-i-mudihah” which is liable to qisas or arsh and imprisonment for five years as ta’zir, under section 337-A(ii), P.P.C., which does not fall within prohibitory clause of section 497, Cr.P.C. The grant of bail in a case not falling within the prohibitory clause of Section 497 Cr. P.C is the rule and its refusal is only an exception. Under the circumstances, the interim pre-arrest bail granted to applicant is confirmed on the same terms and conditions.

 

7.         Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant on merits. In case applicant tries to misuse the concession of bail in any manner, it would be open for the trial Court to cancel his bail after issuing him the requisite notice.  

 

Instant Criminal Bail Application stands disposed of.

 

                                                                                   

JUDGE

 

N.M.