ORDER SHEET

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

Cr. Bail Appln. No.S- 402 of 2023.  

Date of hearing                                Order with signature of Judge.

1.For orders on office objection as flag A.

2.For hearing of  bail application.                        

 Applicant

( Mohammad Sajan     :   Through Mr. Abdul Rehman A. Bhutto, Advocate a/w

& another)                             applicants (on bail).

The State                      :        Through Mr. Ali Anwar Kandhro,  Addl. P.G.

Date of hearing            :       18.12.2023.

O R D E R.

MUHAMMAD SALEEM JESSAR-J.:-Through this application, applicants seek their admission on pre arrest bail in Crime No.123 of 2023 of P.S Kashmore, for offences under Sections 337-J, 427, 504, 506/2 PPC. Applicants filed anticipatory bail application before the Court of Sessions which was heard by learned Additional Sessions Judge, Kashmore vide Cr.Bail Appln. No.495 of 2023 where initially applicants were granted ad interim pre arrest bail on 05.7.2023 and then after hearing the parties its confirmation was declined vide order dated 15.07.2023, hence this application has been maintained.

2.                    Brief facts of the prosecution case are that on 16.06.2023 Complainant Shakal Khan lodged FIR at P.S Kashmore, stating therein that in the background of landed dispute between him and accused party, accused party   had issued them threats of sustaining harm. The complainant  owns  a fish pond  which is looked after by him. On the day of incident, he along with uncle Liaqat and nephew Dilijan were standing at their fish pond, at about 5:00 am, they noticed and identified the accused as everyone Muhammad Sajan 2. Talib Hussain having bottles in hands along with two unknown persons armed with guns arrived there, soon after their arrival accused Sajjan and Talib Hussain opened their respective bottles and poured the poison into the fish pond, and asked complainant party that they have poisoned the fish in order to cause harm to them, meantime accused Sajjan took out T.T pistol from fold of his shalwar and other unknown armed persons aimed their weapon upon complainant party, issued them threats that if they  would make any complaint against them, they would be murdered, saying so all the accused persons ran away towards their houses. The complainant party noticed the fish was dying in their presence, then the complainant party narrated such facts to their Nek Mard who advised him to report the matter, hence the FIR  was lodged  to the above effect.

3.                    Learned counsel submits that case in hand was disposed of under ‘C’ class and such report in terms of 173 Cr.P.C was submitted by the police before the Judicial Magistrate-2, Kashmore who did not concur  his opinion with police report, hence  he took cognizance  of the same.  Whereas  Section 337-J PPC was struck off and formal charge against accused was framed on 28.10.2023 only for Sections 427, 504 and 506/2 PPC. He next submits that entire case has been proceeded and case before the trial Court  is at the verge of final arguments, therefore, submits that by granting this application, the interim bail granted to the applicant may be confirmed.

4.                     Learned Addl. P.G  submits that the chemical report with regard  to the administration of the poison as alleged  has not been in positive.  Besides,  all the sections are carrying  minor punishment therefore, case against the accused  requires further enquiry and hence  he  has no objection to the confirmation of bail.

5.                     Mr.Naushad Ali Bhutto holding brief for Mr.Khadim Hussain Khoso opposes  the bail application on the ground  that the accused  are nominated in the FIR;  besides have caused  loss as well as damage to the properties of the complainant, hence  they are not entitled  for the bail.

6.                    Heard learned counsel for the parties and perused the record. Pursuant to directions contained under previous order the trial Court/Civil Judge and Judicial Magistrate-2, Kashmore has submitted progress report in respect of the criminal case which confirms the contention raised by the learned  counsel  for the applicant.  Case was disposed of under ‘C’ class.  However, the Magistrate by taking cognizance has directed the I.O to submit list of witnesses, hence this case.  

7.                    It is also admitted that Section 337-J PPC has been deleted by the Magistrate himself, as far as remaining sections are concerned, all are bailable  except Section 506/2 PPC  which too carry maximum punishment upto seven years, hence does not fall within prohibitory clause of Section 497 Cr.P.C.

8.                    In the circumstances and in view of dicta laid down by Hon’ble Apex Court Mohammad Tanveer v. The State (PLD 2017 S.C 733), case against the applicant requires further enquiry. Consequently instant bail application is hereby allowed. The interim bail granted to the applicant on 21.07.2023 is hereby confirmed on the same terms and conditions. 

9.                    Needless to say, the observations made hereinabove are tentative in nature which shall not  influence the mind of trial Court while deciding fate of the case.

JUDGE

Shabir