IN THE COURT OF CIVIL/FAMILY JUDGE AND J

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, MIRPURKHAS

Crl. Bail Application No. S-115 of 2024

Applicants/accused: 1. Aleem S/o Jagan,

2. Darho S/o Gul Hassan, both through Mr. Nadeem

Abbasi advocate.

Complainant: Azizullah through Mr. Muhammad Azhar Arain

advocate.

The State: Through Mr. Dhani Bakhsh Mari, Assistant

Prosecutor General, Sindh.

Date of hearing: 22.07.2024

Date of short order: 22.07.2024

Date of reasons: 25.07.2024

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ORDER

Khadim Hussain Soomro, J. : The applicants/accused have sought post-arrest bail in Crime No.07 of 2024 registered at PS Boder Farm under sections 394, 337-H(ii), 34 P.P.C. Earlier, their bail application No.365/2024 was dismissed on 22.05.2024 by the learned Additional Sessions Judge-I, Umerkot, hence the applicants/accused preferred this bail application.

1. A background to the case is that the aforementioned F.I.R was lodged by complainant Azizullah Lashari on 20.04.2024 at 1500 hours, stating therein that on 17.04.2024, he and his cousin Zakir Hussain and Mansoor Ahmed were going on his motorcycle Super Power of black colour, Mode-2011, Engine No. SP-0649145 and Chassis No.SP-0698794 registration No.BA-5695 from village Digho at about 8.00 p.m. When they reached village Hashim Palli Tharwah Mori, they saw and identified in the light of a motorcycle, namely Aleem S/o Jagan, Darho S/o Gul Hassan, having a hatchet and an unknown person with Lathi in his hand, signalled them to stop so the complainant party stopped the motorcycle. Meanwhile, Aleem and Darho asked them to get down from the motorcycle, but they refused. The accused, Aleem took out his pistol from the folder of his shalwar and pointed it at them. Darho caused the blunt side of the hatchet to the complainant, resulting in injury. Hence, he fell down while accused Aleem pointed a pistol at Zakir Hussain to become silent, and all three accused robbed the motorcycle of the complainant and went away to the village Kamal Chachar. After that the complainant party arranged transportation and proceeded to PS Bodar Farm, where they narrated a detailed account of the incident, obtained the necessary letter, and sought medical treatment at Taluka Headquarters Hospital, Umerkot. Subsequently, they appeared at the police station and formally lodged a First Information Report (F.I.R.). Upon registration of the F.I.R., the police arrested the applicants/accused. Hence, this post-arrest bail application.

2. The learned counsel for the applicant accused contented that the F.I.R. is delayed about 03 days without plausible explanation, that the applicant accused and the complainant, an adjacent landlord; that the complainant has sowrn an affidavit of no objection on the bail application of the applicant accused.

3. On the other hand, Assistant P.G opposed the grant of bail on the grounds that the applicants accused have been nominated in the F.I.R. with the specific role that the offence is not compoundable and request for the rejection of bail.

4. The contents of F.I.R. prima facie reflect that the same was lodged after a delay of three days; therefore, due deliberation and consultation can not be rooted out. The complainant has submitted his affidavit extending his no objection to the grant of bail. In the case of Rehmat Ali v. The State, 1979 SCMR 30, the Honourable Supreme Court of Pakistan has held back from expressing any opinion on the credibility or significance of the complainant's statement and the affidavits presented for the grant of bail and observed that this ambiguity is heightened to the disavowal of the prosecution case by the complainant that makes the case of the prosecution as of a "further inquiry" as per the provisions outlined in section 497(2) of the Code of Criminal Procedure [Cr.P.C.]. The relevant portion of the judgment is reproduced as under:-

"But without commenting as to what weight, if any, can and ought to be attached to the aforementioned statement of the complainant and the affidavits relied upon by the petitioners in support of his plea for bail, we are inclined to think that at this stage at least it is difficult to say if the petitioners have committed the offence, more particularly when the complainant himself seems at the moment to disown the prosecution case. In the circumstances of this we think that the case of the petitioners is one of "further enquiry" under section 497(2), Cr.P.C."

5. In another case Sarwar Sultan v. The State (PLD 1994 SC 133) the Honourable Supreme Court held as under:--

"It is for the trial Court to analyze the legal worth of material to be produced by the parties including affidavits. During the hearing of bail application, the Court can make tentative assessment of the material, which is different from and not at equal footing with appraisement of evidence, which is within the ambit of jurisdiction of the trial Court."

6. In the case of Zaigham Ashraf v. State and others (2016 SCMR 18), the apex court established that the phrase "reasonable grounds" as stipulated in section 497 of the Code of Criminal Procedure (Cr.P.C.), necessitated the prosecution's demonstration to the Court that it possessed substantive material or evidence, constituting 'reasonable grounds,' indicating that the accused had committed an offence falling within the restrictive scope of section 497, Cr.P.C. In order to secure bail relief, the accused was only required to demonstrate that the evidence or material presented by the prosecution and/or the defence plea raised reasonable doubt or suspicion regarding the prosecution's case. In the instant case, the complainant, who is the adjacent landlord of the applicant accused, has sworn an affidavit of no objection to the grant of bail, which creates a very reasonable doubt in the case of the prosecution.

7. It is firmly established that further inquiry is a question fundamentally connected to the outcome of the relevant case, wherein a provisional assessment of the evidentiary materials is imperative to facilitate a judicious determination. The principle of such further inquiry assumes the tentative assessment, which may create scepticism regarding the culpability of the accused in the commission of the offence. It is firmly recognized that the basic aim and object of a trial is to make an accused face the trial and not to mete out punishment to a pre-trial prisoner. The fundamental principle is to give the accused a chance to respond to criminal charges against him rather than subjecting him to prolonged incarceration without due process.

8. The deprivation of a person's freedom constitutes a serious legal measure; hence, it requires judicial insight with deep deliberation to reach a just conclusion. This deliberative process should not transpire in segregation or superficially and hurriedly, as such an approach would overthrow the objectives of justice. This is principally pertinent as no recompense or compensation could be rendered for the prolonged incarceration if the accused is eventually acquitted after trial. The provisions of the Criminal Procedure Code and the legal framework related to this matter do not include mechanisms for facilitating the detriment suffered by an accused person.

9. In view of the above, instant bail application is allowed. Both the applicants/accused are admitted to bail subject to furnishing solvent surety in the sum of Rs.50,000/- (Rupees Fifty Thousands only) each and P.R bond in the like amount to the satisfaction of the learned trial Court.

10. These are the reasons for my short order dated 22.07.2024.

JUDGE

*Jabbar*