IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

 

Criminal Bail Appln. No. S- 125 of 2023

 

Applicant:

 

Bachal @ Sajjad Gopang

 

 

Through Mr. Ali Bux Mashori, advocate

 

 

 

 

Complainant:

 

In person.

 

 

 

 

The State

 

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

 

 

 

Date of hearing:

 

03-04-2023

Date of Order:

 

03-04-2023

 

O R D E R

 

 

ZULFIQAR ALI SANGI, J.- Through instant criminal bail application, applicant/accused Bachal @ Sajjad seeks interim pre-arrest-bail in Crime No.104/2022, registered at Police Station Naudero, for the offence U/S 504, 337-V, 34  P.P.C, after rejection of his bail plea by the learned Additional Sessions Judge, Ratodero, vide order dated 26.01.2023.

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 same,  hence, need not to reproduce 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 over dispute of children; that there is delay of one month in registration of F.I.R, which has not been explained by the complainant properly; and injury attributed to applicant is on non-vital part of the body; that injury  has been declared by the Doctor as punishable under section       337-F(v) PPC, which is punishable up-to five years and the same does not fall within the ambit of prohibitory clause of Section       497 Cr.P.C; that after investigation case was opined to be disposed of under 'C' class by the Investigation Officer however, learned Magistrate did not agree with the opinion of I.O and took cognizance, therefore, matter requires further inquiry. He, therefore, requests for confirmation of interim pre-arrest bail already granted to the applicant/accused.

4.                           Learned D.P.G. and complainant, who is present in person, opposed the grant of bail by stating that applicant has been nominated with specific role of causing lathi blows to PW-Yawar Abbas, and the medical evidence has supported the case of prosecution and the PW in their 161 Cr.PC statements have supported the case of prosecution. Therefore, the applicant is not entitled for the concession of pre arrest bail.

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

6.                           Admittedly, the incident has taken place on 27.10.2022 whereas final medical certificate was issued on 15.11.2022, inspite of that F.I.R has not been registered and it was registered on 29.11.2022, after delay of one month without plausible explanation; which creates reasonable doubt in the prosecution case. Furthemore, Injury attributed to applicant is on non vital part of the body of PW Yawar Abbas.  The offence for which the applicant is alleged to have been involved carries punishment up-to five 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. 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.

7.                           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 22.03.2023 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.

 

JUDGE

 

S.Ashfaq/-