IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

 

Criminal Bail Appln. No. S-70 of 2023

 

Applicant:

 

Muhammad Ismail @ Juman

 

 

Through Mr. Saeed Ahmed Panhwar, advocate.

 

 

 

 

Complainant:

 

Rustam Ali Sargani,

 

 

Through Mr. Sajid Hussain Mahessar, advocate

 

The State

 

Through Mr. Aitbar Ali Bullo, D.P.G for the State

 

 

 

Date of hearing:

 

16-03-2023

Date of order:

 

16-03-2023

 

 

O R D E R

 

 

ZULFIQAR ALI SANGI, J.- Through instant criminal bail application, applicant/accused Muhammad Ismail @ Juman seeks interim pre-arrest-bail in Crime No.12/2023, registered at Police Station Mehar, for the offence U/S 381-A, 506/2, 215, 220 P.P.C, after rejection of his bail plea by the learned I-Additional Sessions Judge, Mehar, vide order dated 15.02.2023.

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 applicant that the applicant/accused is innocent and has falsely been implicated in this case by the complainant with malafide intention and ulterior motives; that there is delay of seven months in lodgment of F.I.R, which has not been explained properly by the complainant; that there is previous hostility between the parties; that no person has seen the applicant/accused while stealing the car; that all the witnesses are real brothers of complainant and no any independent witness has been cited in the F.I.R; that there are general allegations against the applicant/accused and no specific role has been assigned against him. He further submits that the offence does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C; that the case requires for further inquiry. He, therefore, requests for confirmation of interim pre-arrest bail already granted to the applicant/accused.

4.                           Mr. Sajid Hussain Mahessar advocate files vakalatnama on behalf of complainant, which is taken on record.

5.                           Learned counsel for the complainant has opposed the grant of bail and submits that on the day of incident, applicant/accused along with co-accused Shabbir committed theft of Toyotta Corrola GLI Model 2011 of complainant. He has prayed for dismissal of bail application.

6.                           Learned D.P.G. in view of above submissions and looking to the delay of seven months, has raised no objection for confirmation of bail.

7.                           Heard learned counsel for the parties and perused the material available on the record.

8.                           Admittedly there is delay of about 7 months in registration of F.I.R, as the incident has taken place on 13.06.2022 and the F.I.R has been lodged on 26.01.2023, same delay has not been explained properly by the complainant, which creates some doubt in the prosecution case.

9.                           The offence for which the applicant is alleged to have been involved carries punishment upto seven years with fine, therefore, the same does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C 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 applicant and has raised no objection for confirmation. 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. Accused is attending the trial court and there is no allegation of misusing the concession of bail against him.

10.                       In view of the above applicant has made out case for grant of interim pre-arrest bail. Resultantly, instant criminal bail application is allowed. Interim pre-arrest bail already granted to the applicant/accused vide order dated 21.02.2023 is confirmed on same terms and conditions.

11.                       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