ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

1^st Crl. Bail Appln. No.S-477  of 2023.

Date                           Order with signature of Hon’ble Judge

1. For orders on office objection.

2. For  hearing of Bail Application.

Messrs Ukesh Kumar Mugherani and Fayaz Ahmed Soomro, Advocates along with applicant (on bail).

Mr. Ali Anwar Kandhro, Addl. Prosecutor General.

Mr. Ahmed Bux Abro, Advocate along with complainant.

Date of Hearing      : 02.11.2023.

O R D E R

                        Applicant Syed Iqrar Ali Shah through this application seeks his admission on pre-arrest bail in crime No.42 of 2023, registered at P.S Dokri, under Sections 148, 149, 506/2, 337-A(i), 337-F(i), 337-F(v), PPC.  The applicant filed joint bail application bearing No.931/2023 before the Court of learned Sessions Judge, which subsequently was assigned to learned VI-Additional Sessions Judge, Larkana. The learned VI-Additional Sessions Judge after hearing the parties granted bail to co-accused Syed Imran Ali Shah and Syed Muzaffar Ali Shah, whereas declined the pre-arrest bail to the applicant vide order dated 03-8-2023.  The case as reported has been challaned, which is now pending for trial before the II-Civil Judge & Judicial Magistrate, Dokri vide Criminal Case No. nil of 2023 re-The State v. Iqrar Shah and others. 

2.         In nutshell the accusation is that on 15.4.2023, at about 8.30 p.m., near the house of complainant in village Bux Jatoi, Taluka Bakrani, the present applicant along with four others, being armed with Pistol, gun, repeater and lathi, attacked upon complainant party, wherein after hurling abuses and extending threats, accused Sheeraz Shah caused repeater butt blow on the forehead of complainant’s son Izhar Hussain Shah, accused Imran Shah caused butt blow of his gun on the head of Izhar Hussain Shah, applicant/accused Iqrar Shah caused pistol butt blow on the nose of Izhar Hussain Shah, which injuries started bleeding and he fell down; then on being beseeched by the complainant party on Holy Quran, the accused persons went away by making aerial firing and threatening the complainant party.   

3.         Learned Counsel for the applicant submits that role attributed to the applicant is allegedly he caused pistol butt blow to complainant’s son Izhar Hussain Shah, which landed on his nose, co-accused Sheeraz Shah caused repeater butt blow, which landed on the forehead of injured Izhar Hussain Shah, while co-accused Imran Shah inflicted gun butt blow on the head of injured Izhar Hussain Shah. Learned Counsel further submits that there is inordinate delay of 2 months in lodgment of FIR, for which no plausible explanation has been furnished. He further submits that after grant of interim pre-arrest bail the applicant has not misused such concession; hence, his case requires further enquiry and prays for confirmation of pre-arrest bail. In support of his contentions, he places reliance on the cases reported as Akhtar Hussain v. The State (2007 YLR 853), Shafqat alias Shafoo v. The State (2010 PCr.LJ 304), Ibrahim v. The State (2008 PCr.LJ 69), Aziz and 2 others v. The State (2007 PCr.LJ 299) and Mushtaq Hussain v. The State (2009 MLD 127).

4.         Mr. Ali Anwar Kandhro, learned Addl. P.G. submits that injury allegedly attributed to present applicant has been declared to be punishable u/s 337-F(v), PPC, which is punishable for five years; hence does not fall within the prohibitory clause of Section 497, Cr.P.C, therefore, he has no objection for grant of bail.

5.         Mr. Ahmed Bux Abro, learned Counsel for the complainant, submits that applicant is nominated in the FIR with specific role of causing injury with the butt of his pistol upon the nose of injured and that injury is punishable under Section 337-A(iii), PPC; however, inadvertently the medicolegal officer as well as I.O. had declared it to be falling under Section 337-F(v), PPC; hence applicant not is entitled for concession of pre-arrest bail. As far delay in lodgment of FIR is concerned, he submits that police being in league with the complainant party was not ready to register his FIR, therefore, he filed application before Justice of Peace and after seeking directions got registered the FIR, therefore, the delay has been explained by the complainant. He, therefore, prays for rejection of bail application.  In support of his contentions, he places reliance upon an unreported ruling passed by learned Bench of this Court on 10.11.2022 in Cr.Bail Application No.S-456/2022 re-Ahsan Ali Chachar v. The State and reported case of Haji Shah Behram v. The State and others (2021 SCMR 1983).

6.         Herad learned Counsel for the parties as well as learned Addl. P.G. and gone through the material placed before me on record.

7.         Admittedly, the incident occurred on 15.4.2023 and report thereof was lodged on 15.6.2022 i.e. with the delay of about 2 months and the explanation as furnished is that complainant brought a copy of order dated 13.6.2023 passed by Ex-Officio Justice of Peace, Larkana, which was allowed on 15.6.2023. Per contents of FIR, the applicant allegedly was armed with pistol and caused it’s butt blow on the nose of complainant’s son Izhar Hussain Shah.  The injury attributed to him has been declared to be punishable u/s 337-F(v), PPC carrying punishment of 5 years. Co-accused Imran was armed with gun, Adnan Shah with lathi and Muzaffar Ali alias Sheeraz Shah with repeater. Though the allegation against co-accused Imran Shah and Muzaffar Ali alias Sheeraz Shah is that they allegedly caused butt blows of their weapons on head of the injured; however, the injuries allegedly attributed to them have been declared as Shajjah-i-Khafifah falling under Section 337-A(i), PPC and are bailable. The learned Additional Sessions Judge while considering the averments has held that Muzaffar Shah was not nominated in the FIR, therefore, his case was considered for bail, whereas co-accused Imran Shah has been granted pre-arrest bail, as the injury attributed to him was not falling within the ambit of prohibitory clause of Section 497, Cr.P.C.  The case law relied upon by learned Counsel for the complainant has no relevancy with present case, as the said case is on distinguishable facts than that of present case. In the case of Shah Behram (supra), the Apex Court declined bail to an accued on the ground that he was involved in a case of attempt to murder, whereas present applicant has involved in instant case to the extent of only causing injury.  Further, the parties in this case are related to each other, besides having enmity over matrimonial affairs, therefore, false implication of the applicant in this case cannot be ruled out.  In view of above the principles for grant of pre-arrest bail  as laid down in the case of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427) are fully attracted in the present case. Moreover, the case is being tried by the Judicial Magistrate, where if the prosecution may succeed to prove the charge against the accused, even then punishment of more than 03 years cannot be visualized.  In the circumstances and in view of the dicta laid down by Apex Court in the case of Muhammad Tanveer v. The State (PLD 2017 Supreme Court 733) the case against the applicant requires further enquiry and does not fall within the ambit of prohibitory clause of Section 497, Cr.P.C.

8.         In view of above discussion, the applicant has succeeded in making out his case for grant of pre-arrest bail, therefore, instant bail application is allowed and the interim pre-arrest bail granted to the applicant on 25.8.2023 is hereby confirmed on same terms and conditions.

9.         It needs no mention here that the observations, if any, recorded hereinabove are based on tentative assessment of the material brought on record, which shall not influence the trial Court, in any manner, while dealing with the trial of the case.   

                                                                                                                        JUDGE   

Qazi Tahir PA/*