IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Bail Appln. No. S-38 of 2023

Applicant:	Ali Mardan and another
	Mr. Muhammad Afzal Jagirani, advocate
The State	Through Mr. Aitbar Ali Bullo, D.P.G for the State
Date of hearing:	09-03-2023
Date of order:	09-03-2023

O R D E R

ZULFIQAR ALI SANGI, J.- Through instant criminal bail application, applicants/accused Ali Mardan and Ghafoor @ Abdul Ghafoor seek pre-arrest-bail in Crime No.52/2022, registered at Police Station Faridabad, District Dadu for the offence U/S 376, 511, 337-L(ii), 337-F(v), 34 P.P.C, after rejection of their bail plea by the learned Additional Sessions Judge-IV, Dadu, vide order dated 04.01.2023.

2. The facts of the incident are mentioned in the memo of 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. It is contended by the learned counsel for the applicants that though earlier on merits this court has rejected pre-arrest bail vide order dated 12.12.2022, however, subsequent thereto, the Investigation Officer has submitted report U/S 173 Cr.P.C under "C" class and the Magistrate took the cognizance while disagreeing with the opinion of investigation officer. He next contended that after the cognizance has been taken by the trial court, the victim/complainant had filed affidavit exonerating the present applicants. He further submits that since the affidavit has been sworn by the alleged victim and she is not supporting her own case, therefore, case of further inquiry is made out and applicants are entitled for such relief. He, therefore, requests for confirmation of interim pre-arrest bail already granted to the applicants/accused.

4. Learned D.P.G. has opposed for confirmation of interim pre-arrest bail on the ground that applicants are nominated in the F.I.R with specific role and filing of affidavit of victim is no ground for grant of bail, however, the applicants may produce the victim P.W before the trial court and they may take the benefit of such assertion before the trial court and at this stage they are not entitled for grant of pre-arrest bail.

5. Heard learned counsel for the applicants, learned Deputy Prosecutor General and perused the material available on the record.

6. Admittedly the incident took place on 29.08.2022 and the F.I.R was registered on 03.11.2022 with the delay of two months and four days and the explanation furnished by the complainant is not satisfactory. The case was investigated and during investigation, recommendations were made for disposal of the case under "C" class, however, the Magistrate had taken the cognizance. Moreover from the contents of F.I.R, Section 376 P.P.C is not made out. After the affidavit of victim, the credibility of a victim is shrouded in mystery, therefore, the case of applicants falls within the ambit of Section 497(2) Cr.P.C, and the applicants are entitled for confirmation of their interim pre-arrest bail.

7. In view of the above, instant bail application is allowed and the interim pre-arrest bail already granted to the applicants/accused vide order dated 02.02.2023 is confirmed on same terms and conditions.  

8. 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

Abdul Salam/P.A