IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Bail Appln. No. S-47 of 2023

Applicants:	Himath Kalhoro and another
	Through M/s Aijaz Ali Kalhoro and Abdul Rehman A. Bhutto, advocates
Complainant:	Mst. Zainab Kalhoro,
	Through Mr. Tahir Abbas Shah, Advocate
The State	Through Mr. Aitbar Ali Bullo, D.P.G for the State
Date of hearing:	31-03-2023
Date of order:	31-03-2023

O R D E R

ZULFIQAR ALI SANGI, J.- Through instant criminal bail application, applicants/accused Himath Ali and Abdul Aziz @ Rabail seek interim pre-arrest-bail in Crime No.87/2022, registered at Police Station Warrah, for the offence U/S 394, 365, 457, 506/2  P.P.C, after rejection of their bail plea by the learned Sessions Judge, Kambar-Shahdadkot @ Kambar, vide order dated 19.01.2023.

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 the applicants/accused innocent and have falsely been implicated in this case by the complainant over matrimonial dispute as they are cousin inter-se, hence due to their relationship with each other the section 457 P.P.C is not applicable; that there is delay of 3 months and 12 days in registration of F.I.R, which has not been explained by the complainant properly. 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 applicants/accused.

4. Mr. Tahir Abbas Shah advocate files vakalatnama on behalf of complainant, which is taken on record. He has opposed the grant of bail and submits that applicants/accused are clearly nominated in the F.I.R with specific role; that 161 Cr.P.C statements of the P.Ws are fully corroborated with version of the complainant; that delay has been explained that the police was not registering the F.I.R. He has, therefore, prayed for dismissal of bail application.

5. 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.

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

7. Admittedly there is delay of about 3 months and 12 days in registration of F.I.R, as the incident has taken place on 13.09.2022 and the F.I.R has been lodged on 25.12.2022, same delay has not been explained properly by the complainant, which creates reasonable doubt in the prosecution case. No any injury has been shown by the complainant on any part of the body, mere presence of the applicants/accused has been shown,

8. The offence for which the applicants are alleged to have been involved carries punishment up-to 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.

9. 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.

10. 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

S.Ashfaq.