IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Cr. Bail Appln. No.S- 232 of 2024
Date of hearing Order with signature of Judge.
Applicant : Mujeeb-ur-Rehman Khoso, through
Mr. Abdul Jabbar Lashari, Advocate.
The State : Through Mr. Aitbar Ali Bullo, DPG.
Complainant : Raza Muhammad Khoso, through Mr Zafar Ali
Malghani, Advocate.
Date of hearing: 18.09.2024.
Date of Order : 18.09.2024.
ORDER.
Khadim Hussain Soomro, J.-Applicant Mujeeb-ur-Rehman son of Abdul Ghani, by caste Khoso, seeks pre-arrest bail in Crime No.13/2024, registered with Police Station Bahoo Khoso, District Jacobabad, under Sections 337-A(i), 337-F(i), 337-F(v), 506/2, 147, 148, 149, PPC. Such plea of the applicant was turned down by the learned Sessions Judge, Jacobabad, vide order dated 26.04.2024.
2. According to the case of the prosecution, on 06.04.2024, the applicant, along with others named in the FIR, being armed with a lathi and pistol, attacked the complainant party near Faiz Muhammad Khoso Police Picket, where the present applicant, along with others inflicted lathi blows to the complainant and then by extending threats of murder went away. On 15.04.2024, complainant Raza Muhammad Khoso lodged an FIR of the incident.
3. Learned Counsel for the applicant submits that the alleged incident occurred on 06.4.2024. The Final MLC was issued on 09.4.2024, whereas the FIR was lodged by the complainant on 15.04.2024 with the delay of 09 days, regarding which no reasonable explanation has been furnished by the complainant; there is no independent witness of the alleged incident; the injury viz. Jurh Ghair Jaifah Hashimah does not fall within the prohibitory clause of Section 497, Cr.P.C. Learned Counsel further submits that there is a dispute between the parties over the land; therefore, false implication cannot be ruled out. He, therefore, prays for a grant of bail to the applicant.
4. On the other hand, learned counsel for the complainant opposes the bail application and contends that the applicant is nominated in the FIR with the specific role of causing injury to the injured complainant; the injury has been opined to be Jurh Ghayr Jaifah Hashimah, which carries punishment for 05 years; the 06 co-accused who have been granted pre-arrest bail are having a different role to that of the present applicant/accused.
5. Learned DPG recorded no objection to the grant of bail on the grounds that the offence does not fall within the prohibitory clause of Section 497, Cr.P.C. He further submits that the memo of injuries was prepared at 11.30 a.m., whereas the incident was at 8.30 a.m., and the injured appeared before the MLO at 5.30 p.m.
6. I heard counsel for the parties and perused the material available on the record.
7. Admittedly, the FIR has been delayed for 09 days, for which no reasonable explanation has been given. Though the Final MLC was issued on 09.4.2024, even then, the FIR was delayed for about 06 days. It is alleged that the applicant caused the stick below on the right hand of the injured, which is a non-vital part of the human body. The injury has been opined to be Jurh Ghayr Jaifah Hashimah, which carries punishment for 05 years. One of the prerequisites for the grant of pre-arrest bail is that the accused must demonstrate that the prosecution's intention to arrest is motivated by mala fide or ulterior motives. It is often challenging for the accused to provide positive or solid evidence of mala fide at this stage. Instead, the element of mala fide may be inferred from the facts and circumstances surrounding the case. If events or indicators suggest such motivations, these can substantiate the claim of mala fide. As per the contents of FIR, there is hostility between the parties over the land. The record reveals that all the family members have been booked in the present case. Therefore, malafide and false implications can not be ruled out. Reliance can be placed on the case reported as Khalil Ahmed Soomro v. The State (PLD 2017 Supreme Court 730), wherein the Hon'ble Supreme Court has recorded the following invaluable observations:-
"5. Although for grant of pre-arrest bail one of the pre-conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide."
8. The offence as alleged does not fall within the prohibitory clause of Section 497, Cr.P.C. In the case of Muhammad Tanveer V/S State (PLD 2017 SC 733), the Supreme Court of Pakistan has expressed astonishment and sadden 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 part 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 Apex Court of Pakistan, 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 Apex 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 application of the applicant. The Apex Court also settles 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 the above facts, circumstances and discussion, in my humble view, the applicant has made out a prima facie case for the grant of pre-arrest bail; therefore, the instant bail application is allowed, and the interim pre-arrest bail granted to the applicant on 30.04.2024 is hereby confirmed on same terms and conditions. However, it is made clear that if the applicant misuses the concession of bail, the complainant shall be at liberty to move an application u/s 497(5), Cr. P.C., seeking cancellation of such concession.
JUDGE
Qazi Tahir/*