THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail No.S-128 of 2023
Applicants: Jamaluddin son of Nasarullah and Mumtaz son of Shah Nawaz both by caste Buriro through Mr. Irshad Ali R. Chandio, Advocate.
Complainant: Hafeezullah through Mr. Muhammad Afzal Jagirani, Advocate.
The State: Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.
Date of hearing: 18.05.2023
Date of Order: 18.05.2023
O R D E R
ZULFIQUAR ALI SANGI, J.- Through instant Criminal Bail Application, applicants/accused Jamaluddin and Mumtaz both by caste Buriro seek pre-arrest bail in Crime No. 16/2023, offence under Sections 337-A(i)(ii), 337-F(i)(v), 337-L(2), 506, 147, 149 P.P.C of the Police Station A-Section Thull. Prior to this, they filed such application, but the same was dismissed by the Court of Additional Sessions Judge, Thull vide Order dated 17.03.2023.; hence they filed instant Criminal Bail Application.
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, need not to reproduce the same here.
3. Learned counsel for the applicants submits that the applicants/accused are innocent and they have been falsely implicated in this case by the complainant with malafide intention and ulterior motives; that the F.I.R. is delayed for more than one month and no plausible explanation has been furnished by the complainant; that the medical certificates obtained by the complainant when challenged before the Medical Board some of the injuries were found incorrect; that the alleged offence with which the applicants are involved does not come within the ambit of prohibitory clause of Section 497 Cr.P.C. Lastly, learned counsel prayed for confirmation of bail earlier granted to the applicants/accused.
4. Learned Deputy Prosecutor General duly assisted by learned counsel for the complainant has opposed the grant of bail to the applicants/accused on the ground that they are nominated in the F.I.R. with specific role of causing lathi blows to P.Ws Rabnawaz and Wahid Bux respectively; that the P.Ws in their Statements recorded under section 161 Cr.P.C. have fully supported the case of prosecution, therefore, the applicants are not entitled for concession of bail.
5. Heard arguments of the learned counsel for the parties and have perused the material available on record with their able assistance. From the perusal of record it reflects that the medical certificates obtained by the complainant were challenged by the applicants before the Medical Board, wherein some of the injuries were found incorrect, which creates doubt. All the offences with which the applicants are involved do 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 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 grounds meriting denial of the application of the applicants. 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.
6. Learned counsel for the applicants/accused has made out case for grant of bail under sub-section (2) of section 497 Cr.P.C. Accordingly, the bail application is allowed and the interim pre-arrest bail earlier granted to the applicants/accused vide order dated 20.03.2023 is hereby confirmed on the same terms and conditions.
7. 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
Manzoor