THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

 

1st Criminal Bail Application No.S-581 of 2022

 

Applicant:            Sheral Shah alias Amjad Shah through Mr. Mazhar Ali Bhutto, Advocate.

 

Respondent:        The State

Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.

 

Date of hearing:  19.01.2023

Date of Order:     19.01.2023

O R D E R

ZULFIQUAR ALI SANGI, J.- Through instant Criminal Bail Application, applicant/accused Sheral Shah alias Amjad Shah son of Syed Allan Shah seeks pre-arrest bail in Crime No. 16/2022, offence under Sections 337-F(i)(v), 337-H(2) & 34 PPC of the Police Station Seehar. Prior to this, he filed such application, but the same was turned down by the Court of III-Additional Sessions Judge, Larkana vide order dated 16.11.2022; hence he filed instant Criminal Bail Application.

2.                The facts of the incident are mentioned in the bail application and the copy of F.I.R. is also attached with the bail application, hence, needs not to reproduce the same here.

3.                Per learned counsel, the applicant/accused is innocent and he has been falsely implicated in this case by the complainant with mala fide intention and ulterior motives; that the F.I.R. is delayed for about one month and no plausible explanation is furnished by the complainant, therefore, false implication of the applicant cannot be ruled out.  He further added that all the sections applied in the F.I.R. for which applicant/accused is involved are bailable and do not fall within the prohibitory clause of section 497 Cr.P.C; that the injury attributed to the applicant/accused is certified to be 337-F(v) P.P.C, which does not fall within the prohibitory clause of section 497 Cr.P.C. This case has been challaned and the accused is attending the Court regularly and he is no more required for further investigation.  Lastly, learned counsel prayed for grant of bail to the applicant/accused.

4.                Notices were issued to the complainant and he sought multiple times to engage the advocate of his choice, but failed to do so. Learned D.P.G has frankly conceded the grant of bail to the applicant/accused by submitting that all the sections are bailable and the injury attributed to the applicant/accused is certified to be 337-F(v) P.P.C, which also does not fall within the prohibitory clause of Section 497 Cr.P.C.

5.                Heard arguments of the learned counsel for the parties and have perused the material available on record. From the perusal of F.I.R., it reflects that the incident took place on 07.10.2022 and the F.I.R. was lodged on 08.11.2022 with the delay of one month, which has not been plausibly explained by the complainant. All the offences with which the applicant is involved are bailable, the injury is declared by the Medico Legal Officer as 337-F(v) P.P.C, which is punishable upto five years and does not fall within the prohibitory clause of section 497 Cr.P.C. Moreover, the post arrest bail of co-accused Zahid Shah has been granted by the learned Civil Judge and Judicial Magistrate-II, Dokri vide order dated 23.11.2022 and the case of the present applicant is on better footings from the case of co-accused.  The offences for which the applicant is allegedly involved, entailing punishment for less than ten years, which does not fall within the prohibitory clause of Section 497 Cr.PC and grant of bail in such cases is rule while refusal is an exception as has been held by Honourable Supreme Court of Pakistan in cases of Tarique Bashir V. State (PLD 1995 SC 34), Zafar Iqbal V. Muhammad Anwar (2009 SCMR 1488), Muhammad Tanveer V. State (PLD 2017 SC 733) and Shaikh Abdul Raheem V. The State etc. (2021 SCMR 822). Further, the Honourable Supreme Court in case of Muhammad Imran V. The State (PLD 2021 SC-903) has formulated the grounds for the case to fall within the exception meriting denial of bail as (a). the likelihood of the petitioner’s abscondence 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 offence keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offence alleged. Further, Honourable Supreme Court held in the said order that the prosecution has to show if the case of the petitioner falls within any of these exception on the basis of the material available on the record. In the case in hand, the prosecution has failed to establish any of the above ground meriting denial of the application of the applicants. It is also settled by the Honourable Apex Court that deeper appreciation of the evidence is not permissible while deciding the bail application and the same is to be decided tentatively on the basis of material available on the record.

6.                Learned counsel for the applicant/accused has made out case for grant of bail under sub-section (2) of section 497 Cr.P.C.  Accordingly, the bail application is allowed and the interim pre-arrest bail earlier granted to the applicant/accused vide order dated 30.11.2022 is hereby 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 learned Trial Court while deciding the case of either party at trial.

                                J U D G E

Manzoor