ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail Appln. No. S-13 of 2023
Applicant: Ihsan Ali Malik
Through Mr. Aftab Ahmed Channa, Advocate
The State Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of hearing: 06-02-2023
Date of order: 06-02-2023
ZULFIQAR ALI SANGI, J.- Through instant criminal bail application, the applicant/accused Ihsan Ali Malik seeks interim pre-arrest-bail in Crime No.216/2022, registered at Police Station A-Section Kandhkot for the offence U/S 337-F(v), 506/2, 114, 504, 337-A(i), F(i), 147, 148, 149 P.P.C, after rejection of his bail plea by the learned I-Additional Sessions Judge, Kandhkot vide order dated 14.01.2023.
2. The facts of the incident are mentioned in the 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 three months in registration of F.I.R, which has not been explained by the complainant properly; that the offence for which the applicant has been involved does not fall within the prohibitory clause of Section 497 Cr.P.C. He further added that bail of co-accused Abid, Ashiq, Lal Khan and Ghulam Mustafa has been confirmed by the learned I-Additional Sessions Judge, Kandhkot, however, only bail application of present applicant/accused was declined. He further submitted that subsequently the learned trial court has also granted the post-arrest bail to the co-accused Muhammad Ali, for which he has placed on record the copy of case diary dated 29.12.2022. He further submits that this F.I.R was registered with malafide intention and the case requires further inquiry as already been ordered by trial court in bail application of co-accused. He, therefore, requests for confirmation of interim pre-arrest bail already granted to the applicant/accused.
4. Learned D.P.G. in view of above submissions and looking to the delay of three months, has raised no objection for confirmation of bail.
5. Heard learned counsel for the applicant, learned Additional Prosecutor General and perused the material available on the record.
6. It reflects from the F.I.R that incident took place on 26.09.2022, however, the F.I.R was registered on 22.12.2022 and no proper explanation was furnished in the F.I.R. The offence for which the applicant is involved carries punishment upto five years and the same does not fall within the 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 in the said order held that the prosecution has to show if the case of the applicant 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.
7. In view of above, it appears that the applicant/accused has made out a case for confirmation of interim pre-arrest bail in view of subsection (2) of Section 497 Cr.P.C. Accordingly, instant criminal bail application is allowed. Interim pre-arrest bail already granted to the applicant/accused vide order dated 16.01.2023 is hereby 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