ORDER SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANO
1st. Cr. Bail Application No. S-509 of 2023
Applicant: Talib Hussain son of Muhammad Yaqoob Naich through Mr. Abdul Rehman Bhutto, Advocate.
The State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Complainant: Basheer Ahmed in person.
Date of hearing : 13.11.2023
Date of order : 13.11.2023
O R D E R.
Muhammad Saleem Jessar, J.- Through this bail application, the applicant, Talib Hussain, seeks his admission on pre-arrest bail in crime No.179/2023, registered at Police Station Kashmore, for offence under sections 337-A(i), A(ii), F(i), L-2, 504, 147, 148 and 149, PPC. The applicant filed anticipatory bail application No.712/2023 before the Court of Sessions Judge, which subsequently was assigned to Additional Sessions Judge, Kashmore, where after hearing the parties same was dismissed vide order 05.09.2023; hence, this bail application has been maintained.
2. As reported, the case has been challaned which is now pending for trial before Civil Judge/Judicial Magistrate-II, Kashmore vide Criminal Case No.237 of 2023, re: State v. Talib Hussain and others.
3. The facts of the case are mentioned in FIR, copy whereof has been attached with the memo of bail application, hence need not to be reproduced here again.
4. Learned counsel submits a case diary of the trial Court dated 18.9.2023 as well as Office Order dated 04.09.2023 issued by Special Medical Board, GMMC Hospital, Sukkur, which are taken on record. On perusal of the case diary, it reveals that charge against accused was framed on 18.9.2023 and the matter was fixed on 03.10.2023 for recording evidence; however, no witness has been examined. Learned Counsel, referring to the Office Order dated 04.09.2023 issued by Special Medical Board, submits that medico-legal certificate of injured Kamber Ahmed was challenged by the applicant/accused, but the injured did not appear before the Special Medical Board on three consecutive dates viz., 20.9.2023, 04.10.2023 and 18.10.2023, therefore, the medico-legal certificate issued by MLO Dr. Nisar Ahmed Jakhrani in favour of injured has been kept under abeyance as it has lost its sanctity. Learned Counsel further submits that FIR is also delayed for about three days and no plausible explanation has been furnished by the prosecution, besides the injuries allegedly sustained by the injured do not attract prohibition contained in Section 497, Cr.P.C.
5. Learned Additional Prosecutor General for the State, after consulting the record, does not oppose the bail application.
6. The complainant present in person opposes the bail application and submits that applicant intends to encroach upon the land jointly owned by them hence he had caused injuries to injured.
7. Heard arguments of learned counsel for the applicant as well as learned A.P.G and the complainant in person, and perused the record.
8. Admittedly, the F.I.R is delayed for about three days, 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(ies) allegedly sustained by injured, though is/are on vital part of the body of injured; nevertheless, he did not appear before the special medical board, therefore, the legality as well as veracity of the medical evidence are under clouds and the same has been kept in abeyance by the members of the Board. However, 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 applicant is not shown to have misused the concession extended to him.
9. In view of above, instant bail application is allowed and the interim pre-arrest bail granted to applicant on 07.09.2023, is hereby confirmed on same terms and conditions.
JUDGE
Qazi Tahir/-