IN THE HIGH COURT OF SINDH CIRCUIT COURT,

LARKANA

Crl. Bail Appln. No. S- 355 of 2021.

Applicants:                Abid Bhatti and 9 others, through Mr. Athar Abbas Solangi, Advocate.

The State:                  Through, Mr. Ali Anwar Kandhro, Additional Prosecutor General.

Date of hearing:        23.08.2021.

Date of order:           23.08.2021.

Reasons:                    30.08.2021.

O R D E R

Abdul Mobeen Lakho, J:   Through this application, the applicants Abid Bhatti, Sajjad alias Tony Mastoi, Javed Brohi, Arsllan Fatah Lashari, Asghar Ali Jakhrani, Manzoor Ahmed Jakhrani, Muhammad Rafique Jakhrani, Aamir Jakhrani, Deedar Ali Jakhrani and Wali Khan Jakhrani have sought for their admission to post-arrest bail in Crime No.43/2021 registered with Police Station Civil Line, Jacobabad, for offences punishable under Sections 353, 427, 506 (2), 342, 504, 120-B, 224, 226, 148 and 149 P.P.C.

            Earlier, a bail application filed on behalf of the applicants before learned trial Court i.e. Judicial Magistrate-I, Jacobabad, was dismissed vide Order dated 19.07.2021. Then, the applicants approached learned Sessions Judge, Jacobabad, vide Crl. Bail Appln. No. 588/2021, which was made over to learned Additional Sessions Judge-I, Jacobabad, who also declined bail to applicants vide Order dated 07.08.2021. As such the applicants have approached this Court for same relief.

            The facts of the case of the prosecution as depicted from para 2 of the impugned order passed by learned Additional Sessions Jude-I, Jacobabad, are as under:

            “Complainant ASI Aijaz Ahmed lodged F.I.R on 30.06.2021 at about 1600 hours, stating that, on 28.6.2021 vide roznamcha entry No.30 at about 1900 hours, he alongwith N.A.B Officers of Sukkur, namely, Chaudhry Shahzad Ahmed (D.D NAB Sukkur), Muhammad Irfan (A.D NAB Sukkur, Waliullah A.D NAB Sukkur, Inspector Mir Abdu Razzak, SIP Fateh Ali Gopang, AI Liaquat Ali and other police staff left police station Civil Line, Jacobabad, on government police mobiles No. SPE- 238, driven by H.C Ghulam Rasool, SPE-176 driven by P.C Shahzado, government Hiace GZ-955 driven by Mazharuddin and government Wagon baring No. GPA-287 driven by Shahmir and went towards bungalow of Aijaz Hussain Jakhrani to conduct raid for his arrest and H.C-2183 Muhammad Ali, P.C-2644 Manzoor Ahmed, PC-3206 Riaz Ahmed of Police Station Civil Line, Jacobabad were also with them. At about 1915 hours, they arrived at bungalow of Aijaz Hussain Jakhrani and when NAB Sukkur Team entered into bungalow; in the meantime police personnel of Special branch, Jacobabad, and D.I.B Branch in civil dress came there and accused Zafar Ali Buriro, Khadim Hussain Bhutto and other persons available in bungalow made to sit the NAB officers in Bungalow of Aijaz Hussain Jakhrani and they chanted slogans against NAB Sukkur team. Accused Khadim Hussain Bhutto called accused Waseem Ahmed Jakhrani and other 200 to 250 unknown persons at main gate of Jakhrani-House and majority of accused were armed with lathis and stone –pieces; they used criminal force and attacked upon NAB Sukkur team, hence complainant party tried to save NAB Sukkur team, on which accused Waseem Ahmed Jakhrani caused slaps to one of NAB Officer and accused having stone pieces thrown stones on vehicles of NAB Sukkur team  and in result glasses of the vehicles of NAB Sukkur team went damaged and accused issued threats of dire consequences to NAB Officers Sukkur and hurled abusive language to NAB Officers. The complainant party saved officers of NAB team Sukkur, who thereafter went away towards Sukkur, hence on direction of S.S.P Jacobabad, vide letter No. RCR/ 3445, dated 30.06.2021 the complainant lodged the F.I.R.”

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

            Learned counsel for the applicants mainly contended that, F.I.R is delayed for about two days; that none of the applicants has been nominated in the F.I.R, however their names have been added in the challan sheet; that no any identification test parade of the applicants has been held before any Magistrate; that none of the NAB officials has come forward to report the matter and nobody from NAB team received any kind of injury and that most of the sections applied in F.I.R except Section 506 (2) P.P.C, are either bail-able or do not fall within prohibitory clause of Section 497 Cr.P.C. Learned counsel further contended that Section 226 P.P.C has been inserted later on in the challan sheet on the direction of concerned Magistrate vide order dated 19.7.2021 passed on a Report under Section 173 Cr.P.C., though such section has been omitted vide Law Reforms Ordinance XII of 1972.  Lastly, learned counsel prayed for grant of bail to the applicants.

            Conversely, Mr. Ali Anwar Kandhro, Additional Prosecutor General appearing for the State opposed grant of bail to applicants-accused and supported the impugned orders. It is however worth to mention that, in short order dated 23.8.2021, inadvertently the name of Mr. Muhammad Noonari, Deputy Prosecutor General was mentioned, instead of Mr. Ali Anwar Kandhro, Additional Prosecutor General, who actually conducted this case on behalf of the State.

            It appears that F.I.R is delayed for about two days and names of the applicants do not appear therein. It further appears that no identification test parade of the applicants has been conducted before any Magistrate. The record further reveals that none from NAB team has come forward to report the matter to police station. The F.I.R shows that the accused persons maltreated the members of NAB team by causing stones and “lathi” blows, but this fact does not get support from any medical evidence, as is evident from challan-sheet which does not speak about any medical evidence collected during the course of investigation. The perusal of charge-sheet further reflects that, investigation officer has himself mentioned that he recorded statements of witnesses of NAB team in their office, which are contradictory.  Furthermore, most the sections applied in F.I.R except Section 506 (2) P.P.C, are either bail-able or do not fall within prohibitory clause of Section 497 Cr.P.C. The ingredients of Section 506 (2) P.P.C would be determined by the trial Court at trial. In the cases not falling within prohibitory clause of Section 497 Cr.P.C., the grant of bail is rule and refusal is an exception as has held by the Hon’ble Apex Court in its numerous judgments. The challan of the case has already been filed and physical custody of the applicants is no more required to police for the purpose of investigation. In these circumstances continued custody of the applicants in jail is not likely to serve any beneficial purpose at this juncture.

            The Hon’ble Supreme Court in an unreported judgment/ order dated 14.6.2021 passed in Criminal Petition No. 529 of 2021, while granting bail to petitioner (therein) has observed as under:

            “The main purpose of keeping an under-trial accused in detention is to secure his attendance at the trial so that the trial is conducted and concluded expeditiously or to protect and safeguarded the society, if there is an apprehension of repetition of offence of commission of any other untoward act by the accused. Therefore, in order to make the case of an accused person fall under the exception the rule of grant of bail in offences not covered by the prohibitory clause of Section 497 (1) Cr.P.C, the prosecution has to essentially show from the material available on the record, such circumstances that may frustrate any of the said purposes, if accused person is released on bail. This Court in the cases of Tariq Bashir, Zafar Iqbal and Muhammad Tanveer has time and again illustrated such circumstances or such conduct of the accused person that may bring his case under the exceptions to the rule of granting bail. they include the likelihood of: (a) his abscondence to escape trial; (b) his tampering with the prosecution evidence of 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. A  court which deals with an application for grant of bail in an offence not falling within the prohibitory clause of Section 497 (1) Cr.P.C must apply its judicious mind to the facts and circumstances of the case and to the conduct of the accused person, and decline to exercise the discretion of granting bail to him in such offence only when it finds any of the above noted circumstances or some other striking circumstances that impinges on the proceedings of the trial or poses a threat or danger to the society, justifying his case within the exception to the rule, as the circumstances mentioned above are not exhaustive and the facts and circumstances of each case are to be evaluated for application of the said principle.”

            A tentative assessment of all the above factors and the material available on record makes the case of applicants one of further enquiry as envisaged in subsection (2) of Section 497 Cr.P.C. Accordingly, keeping in mind the observations of the Hon’ble Supreme Court the instant bail application was allowed vide short order dated 23.08.2021, whereby the applicants were granted post arrest bail subject to furnishing solvent surety in the sum of Rs.50,000/- (Fifty thousand rupees) each and P.R bonds in the like amount to the satisfaction of Additional Registrar of this Court and these are the reasons for the short order.

            Needless to say that the observations made in this order are of tentative nature and shall not influence the trial Court while concluding the case. The learned trial Court is to expeditiously proceed with the trial in accordance with law, and in case of abuse or misuse of concession of bail by the applicants-accused including causing delay in conclusion of the trial, the prosecution may approach the competent Court for cancellation of bail under Section 497 (5) Cr.P.C.

                                                Judge

Ansari