ORDER SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANO
Cr. Bail Application No. S-582 of 2023
Applicants: Khadim Hussain Noonari & 03 others through Mr. Zafar Ali Malghani, Advocate.
The State: Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Complainant: Through Mr. Shakeel Ahmed G. Ansari Advocate.
Date of hearing : 27.11.2023
Date of order : 27.11.2023
O R D E R.
Muhammad Saleem Jessar, J.- Through this bail application, the applicants, Khadim Hussain, Fida Hussain, Muhammad Aalim and Shah Muhammad @ Shahal Khan, all by caste Noonari, seek their admission on pre-arrest bail in crime No.125/2023, registered at Police Station A-Section, Thul, for offence under sections 506/2, 403, 337-H(2), 337-A(i), 337-F(i), 148, and 149, PPC. The applicants filed anticipatory bail application No.854/2023 before the Court of Sessions Judge, Jacobabad, which subsequently was assigned to Additional Sessions Judge, Thul, where after hearing the parties same was dismissed vide order 28.09.2023; hence, this bail application has been maintained.
2. The facts of the prosecution case, in brief, are that on 12.09.2023, at 6.15 p.m. time, at the bank of Sonwah behind Old Press Club, Thul, the present applicants along with unidentified accused, being armed with T.T. Pistols and lathies, ambushed the complainant party on account of previous dispute/ altercation and applicant Khadim Hussain inflicted a pistol butt blow on the backside of head of complainant Abdul Nabi Lashari, whereas others caused lathi blows to him and then fled away; whereafter complainant found an amount of Rs.470000/- lying in his pocket were missing.
4. Learned counsel for the applicants submits that FIR is delayed for one day and no plausible explanation has been furnished by the prosecution for such delay. He next submits that there is previous dispute between the parties, which is evident from bare reading of the FIR, besides the injury allegedly sustained by the complainant do not attract prohibition contained in Section 497, Cr.P.C.
5. Learned Deputy Prosecutor General for the State, after consulting the record, does not oppose the bail application, particularly in view of the fact that the offence does not fall within prohibitory clause of Section 497, Cr.P.C.
6. Learned Counsel for the complainant opposes the bail application and submits that applicant as are nominated in the FIR and specific roles are assigned to them, therefore, they are not entitled for extraordinary concession of pre-arrest bail.
7. Heard arguments of learned counsel for the applicants, learned DPG as well as learned Counsel the complainant, and perused the record.
8. Admittedly, the F.I.R is delayed for one day, for which no plausible explanation has been furnished by the prosecution. The delay in criminal cases has always been held by the Superior Courts to be fatal for the prosecution. The injury allegedly sustained by complainant, which is assigned to applicant Khadim Hussain only, though is on vital part of the body; nevertheless, the same is punishable only for five years, as such, the offence does not fall within prohibitory clause of Section 497, Cr.P.C. No overt act is assigned to rest of the applicants. The parties appear to be at loggerheads prior to the alleged incident. Moreoso, the injured as well as PWs still have to record their evidence before trial court and after such exercise if, prosecution succeeds to prove charge against the accused, then they shall be treated according to law. The case has been challaned and applicants are not alleged to have misused the concession of ad-interim pre-arrest bail extended to them.
9. In view of above, instant bail application is allowed and the interim pre-arrest bail granted to applicants on 13.10.2023, is hereby confirmed on same terms and conditions.
JUDGE
Qazi Tahir/-