ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

                             1st. Crl. Bail Application No.S-600 of  2023. 

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

 

For hearing of bail application.

13.11.2023.

Mr. Miran Bux Soomro, Advocate along with applicant (on bail).

 

                   Mr. Ali Anwar Kandhro, Addl. P. G.

 

O R D E R

 

MUHAMAD SALEEM JESSAR, J.- Through instant bail application, applicant Qamaruddin son of Alam Mazari, seeks pre-arrest bail in Crime No.203 of 2023, registered at Police Station Kashmore, for offence punishable under sections 459, and 215, PPC.  The applicant filed bail application No.830 of 2023 before the Court of Sessions, which subsequently was assigned to Additional Sessions Judge Kashmore, who after hearing the parties has turned down the request so made by the applicant vide his order dated.13.10.2023, hence this application.

 

2.       As reported, the case has been challaned and sent up to the Court of Sessions being ultimate Court of trial on 10.8.2023, where it is fixed on 18.11.2023 for framing of charge.

 

3.       Facts of the prosecution case as enunciated in the F.I.R are that on 23.10.2022, at night hours, complainant’s son Aftab and nephew Nazar Muhammad went to sleep in their house after taking night meals. On 24.10.2022, at about 01:00 a.m., they woke up on barking of dogs, saw that accused everyone Qamar Din with hatchet, Zain Din with K.K and three unknown persons, were standing there. It is further alleged that accused persons were after committing theft of buffalo were leaving the house. Complainant raised cries and grappled with the accused, whereupon accused Qamar Din inflicted hatchet blow on complainant at his left ear, right hand and also inflicted injury on his shoulder, accused Zain Din aimed K.K upon the complainant party and being empty-handed they remained silent. Thereafter all the accused went away along with stolen buffalo. It is further alleged that complainant was brought at PS wherefrom he obtained letter, went to hospital and after getting treatment, the complainant party traced footprints of the accused, which led them to the Otaq of accused Qamar Din, where accused person demanded Bhung money for return of stolen buffalo and accordingly complainant paid amount of rupees one lac as Bhung money to accused Qamar Din, then accused persons kept the complainant party on false hopes for return of stolen buffalo and finally refused, as such FIR to the above effect was lodged.

 

4.       Learned counsel for the applicant submits that the applicant is innocent and he has been falsely implicated in this case by the complainant with malafide intention; that the FIR is delayed for about one year and no plausible explanation has been furnished by the prosecution for such an inordinate delay; that the alleged incident is said to have taken place at the odd hours of night and source of identification is shown as bulbs light, which is very weak type of evidence and cannot be relied upon, hence learned counsel for the applicant prays for confirmation of bail.

 

5.       Learned Addl. P. G, appearing for the State, does not oppose the grant of bail, on the ground, inter alia, that FIR of the incident was lodged with the delay of about a year and no plausible explanation has been furnished by the prosecution for such an inordinate delay.

 

6.       No doubt the applicant is nominated in the F.I.R, but per FIR the incident as shown had occurred on 24.10.2022 whereas report thereof was lodged on 04.10.2023 i.e. with the delay of about a year, for which no plausible explanation has been furnished by the prosecution. The medical certificate of injured Jaffeer Ali reveals that he had sustained three injuries on his person, which have been declared to be Shajjah-i-Khafifah and Jurh Ghyr Jaifah Hashimah; both the injuries carry maximum punishment of five years. As far as Section 459, PPC is concerned, it provides two punishments and the second part of its punishment is that it may extend to ten years, whereas section 215, PPC is bailable. The incident, as admitted, had occurred at the odd hours of night and the source of identification as claimed was electric bulbs light. The alleged stolen buffalo has not been recovered from the applicant. The delay in criminal cases has always been held to be fatal for prosecution. In instant case, there is an unexplained delay of a year, which creates doubt and makes the case of the applicant to be of further enquiry within the meaning of subsection (2) of Section 497, Cr.P.C.

7.       Cumulative effect of above is that, the applicant deserves concession of bail, therefore, instant bail application is allowed. Interim pre-arrest bail granted to the applicant on 18.10.2023, is hereby confirmed on the same terms and conditions. The applicant present is directed to continue his appearance before the trial Court till final decision of the case.

 

 

                                                                                                Judge

 

 

 

 

 

 

 

 

M.Y.Panhwar/**