ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Cr. Bail Appln.No.S- 385 of 2024.
Date of hearing Order with signature of Judge.
Applicant : Mumtaz Lar, through M/s Aashique Ali Jatoi and Naseer
Ahmed Wagan, Advocate.
The State : Through Mr. Aitbar Ali Bullo, DPG.
Complainant : Present in person, through Mr. Ghulam Sarwar Abdullah (Ihsan Ali) Soomro, Advocate.
Date of hearing: 28.08.2024.
Date of Order : 28.08.2024.
ORDER.
Khadim Hussain Soomro, J.- Applicant Mumtaz son of Niaz Hussain, by caste Laar, seeks his release on post-arrest bail in Crime No.12/2024, registered with Police Station Gaji Khuhawar, District Kamber-Shahdadkot, under Sections 337-F(i), 337-F(v), 148, 149, 337-H(2), PPC. Such plea of the applicant was turned down by the learned Additional Sessions Judge-II, Kamber vide order dated 29.06.2024.
2. According to the case of prosecution, on 13.04.2024, the applicant, along with five others named in the FIR, being armed with deadly weapons, to wit, cudgels, pistols, hatchet and repeater gun, attacked upon complainant party at the water hand-pump near the pond in village Abbas Ali Laar, wherein the present applicant, co-accused Dado Laar and Mohsin Laar inflicted cudgel and blunt side hatchet blows to complainant's brother Asad Ali and then by extending threats of murder to them went away. On 10.05.2024, complainant Ihsan Ali approached the police and lodged instant FIR.
3. Learned Counsel for the applicant submits that both the parties are related inter se and that the applicant has been falsely implicated in this case by the complainant due to previous ill-will; that the FIR has been lodged with a delay of 27 days for which the complainant has furnished no plausible explanation; that no independent person has been cited as a witness of the alleged incident and the P.W.s and complainant are related to each other; that except Sections 337-F(v) and 506/2, PPC, all other sections applied in the FIR are bailable; whereas the offence does not fall within prohibitory clause of Section 497, Cr.P.C; that the case has been challaned and the applicant, who is behind the bars right from his arrest, is not required to police for any investigation. He, therefore, prays for grant of bail to the applicant.
4. On the other hand, learned DPG opposes the bail application on the grounds that the applicant is nominated in the FIR with the specific role of causing cudgel injury to injured Asad Ali; therefore, he is not entitled to concession of bail.
5. Mr. Ghulam Sarwar Abdullah Soomro, learned Counsel for the complainant, also opposes the bail application on the ground that the applicant, who is nominated in the FIR, has been assigned a specific role of causing injuries to injured Asad Ali and subsequent to this incident, the sons of the present applicant have attacked upon the complainant on his abetment and they have seriously wounded him; hence, he is not entitled to grant of bail and prays for dismissal of instant bail application.
6. I have heard Counsel for the parties and perused the record.
7. Admittedly, the FIR is delayed about 27 days, for which no reasonable explanation has been given. It appeared that the net had been thrown wider, and all persons of one and the same family have been booked in the present case. The accused applicant has been in custody for the last three months. The injury attributed to the present applicant accused is Ghayar-JaifahHashimah, which provides a punishment of five years and does not fall within the prohibitory clause of section 497(1), Cr.PC. The Accused has made out a case for grant of bail. The reliance can be placed in the case of Khalil Ahmed Soomro V/S The State (PLD 2017 S.C 730).
8. In the case of Muhammad Tanveer V. State (PLD 2017 SC 733), Hon'ble Supreme Court of Pakistan has expressed astonishment that bail is routinely denied in situations and in offences that don't come within the restriction provided in section 497 of the Cr.P.C on dubious justifications and the same was considered as an unnecessary financial burden on the general public, especially those accused of such crimes. The relevant ratio of the judgment is reproduced as under:-
"We are shocked and disturbed to observe that in cases of this nature, not falling within the prohibition contained in section 497, Cr.P.C., invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions. This phenomenon is growing tremendously, thus, cannot be lightly ignored as precious time of the Court is wasted in disposal of such petitions. This Court is purely a constitutional Court to deal with intricate questions of law and Constitution and to lay down guiding principle for the Courts of the country where law points require interpretation.
9. The Hon'ble Supreme Court, in the 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, the Hon'ble Supreme Court held in the said order that the prosecution has to show if the case of the petitioner falls within any of these exceptions on the basis of the material available on the record. In the case at hand, the prosecution has failed to establish any of the above grounds, meriting the denial of the applicant's application. It is also settled by the Hon'ble 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.
10. In view of above facts, circumstances and discussion, instant bail application is allowed and the applicant is directed to be released on bail on his furnishing solvent in the sum of Rs.100,000/- (rupees one lac) and P.R bond in the like amount to the satisfaction of trial Court. It is, however, made clear that in case the applicant misuses the concession of bail, the complainant shall be at liberty to move an application u/s 497(5), Cr.PC seeking cancellation of such concession.
JUDGE