IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Bail Application No.S-683 of 2021

 

Date of hearing

               Order with signature of Judge

 

          For hearing of bail application.

 

O R D E R.

10-02-2022.

 

                                      Mr. Liaquat Ali Malano, advocate for applicant.

                                      Mr. Shabbir Ali Bozdar, advocate for complainant.

                             Mr. Shafi Muhammad Mahar, DPG for the State.

 

AMJAD ALI SAHITO J., Through the instant Application, applicant/accused Aftab Ali Mahar seeks post-arrest bail in Crime No. 43/2020, offence u/s 302, 324, 147, 148, 149, 337F(iii), 504 PPC, registered at Police Station Sarhad,  District Ghotki. Prior to this, his bail plea was dismissed by learned I-Additional Sessions Judge(MCTC) Ghotki vide order dated 14-09-2021, hence instant bail application.

2.       The details and particulars of the FIR are already available in the bail application and FIR, same could be gathered from the copy of FIR attached with such application, hence, needs not to reproduce the same hereunder.

3.       It is, inter-alia, contended by the learned counsel for the applicant/accused that applicant/accused is innocent and has falsely been implicated in this case by the complainant; that co-accused; co-accused Rahim Bux Mahar has been granted pre-arrest bail by this Court vide order dated 28-08-2021; that applicant/accused has not fired upon the deceased, but his fire allegedly hit to injured Ghulam Ali at his right foot, which is non-vital part of the body and such injury has been declared by the medical officer u/s 337F(iii) PPC, which is punishable upto three years; that applicant/accused is continuously in jail since 27-05-2020; that case has been challaned and he is no more required for further investigation. Lastly he prayed that it is fit case for further enquiry and the applicant/accused is entitled for concession of bail. He placed his reliance on case reported as Muhammad Umar Vs. The State and another (PLD 2004 Supreme Court 477), Sanwan Vs. The State (2012 MLD 1956) and Ahmed Khan Vs. The State and another (2014 PCrLJ 76).

4.       On the other, learned APG for the State assisted by learned counsel for the complainant have opposed for grant of bail to the applicant/accused on the ground that he is involved in murder case. Learned counsel for the complainant relied upon the case of Abdul jabbar alias Jabbar Vs. The State (2018 PCrLJ 184).

5.       I have heard learned counsel for the parties and have gone through the material available on the record with their assistance.

6.       From the bare perusal of FIR, it appears that applicant/accused Aftab Ali Mahar has not fired upon the deceased, but he allegedly fired upon Ghulam Ali, which hit him at his right foot, which is non-vital part of the body and such injury has been declared by the medical officer u/s 337F(iii) PPC, which is punishable upto three years. Record further reflects that co-accused; co-accused Rahim Bux Mahar has been granted pre-arrest bail by this Court vide order dated 28-08-2021 while the applicant/accused is continuously in jail since 27-05-2020. The case has been challaned and he is no more required for further investigation.  Section 497 (a) C.P.C provides that who, being accused of any offence no punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded. Progress report was called from the learned trial Court, which shows that charge was framed and subsequently amended charge was framed against the accused by the learned trial Court. It is well settled principle of law that at the bail stage only tentative assessment is to be made. In the case of Qurban Ali Vs. The State (2017 SCMR 279), the Hon’ble Supreme Court of Pakistan has granted bail to the accused, who had not been attributed any overt act during the occurrence, except the role of raising “Lalkara” and further held that in such circumstances, trial Court had to determined, after recording pro and contra evidence, whether the applicants were vicariously liable for the act of their co-accused and that case was one of the further enquiry. Moreover learned counsel for the applicant pleaded malafide on the part of complainant that due to previously enmity over the matrimonial affairs, the present applicant is booked in this case. At bail stage only tentative assessment is to be made. The case has been challaned and the applicant/accused is in jail and he is no more required for further inquiry. In the unreported case of Jahanzeb Khan Vs. The State through A.G KPK and others Criminal Petition No.594/2020, the Hon’ble Supreme Court of Pakistan has held that;

          “4.....Petitioner’s continue detention is not likely to improve upon investigative process, already concluded, thus, he cannot be held behind the bars as a strategy for punishment. A case for petitions’ release on bail stand made out.

7.      In view of above discussion, learned counsel for the applicant/accused has made out a good case for grant of bail in the light of sub section (2) of Section 497 CrPC, hence the instant bail application is allowed, applicant/accused is admitted to bail subject to furnishing his solvent surety in the sum of Rs. 100,000/- (One lac) and P.R bond in the like amount to satisfaction of learned trial Court. If applicant/accused misuses the concession of bail, then trial Court is at liberty to take action against him.

8.      Needless to mention 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.

 

                                                                                                                                                                              Judge

                                                       

 

Nasim/P.A