ORDER SHEET

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

Cr. Bail Appln. No. D- 08 of 2024.

Date of hearing Order with signature of Judge.

1.For orders on office objections as flag A.

2.For hearing of bail application.

Applicant

(Abdul Haleem Mahar): Through Mr. Azhar Hussain Abbasi, Advocate.

Complainant

(Syed Imran Ali Shah) : Present in person.

The State : Through Mr. Aitbar Ali Bullo, D.P.G.

Date of hearing : 27.3.2024.

O R D E R.

MUHAMMAD SALEEM JESSAR-J.:- Through instant bail application, applicant Abdul Haleem Mahar seeks his admission on pre arrest bail in Crime No.110 of 2023 P.S Stuart Ganj District Shikarpur under Sections 386, 324, 337-H(ii), 34 PPC r/w Section 6/7 ATA 1997. The applicant filed pre arrest bail application No.56 of 2023 before learned Anti-terrorism Court, Shikarpur. After hearing learned counsel for the parties, learned Judge, Anti-terrorism Court Shikarpur has declined his request for bail.

2. Since the facts of the prosecution case are already mentioned in the FIR as well as order passed by the Court below, therefore, there is no need to reproduce the same.

3. Learned counsel for the applicant submits that the FIR is delayed for about 9 hours whereas the distance between the P.S and occurrence is about 2 k.ms and no plausible explanation has been furnished by the prosecution for such delay. He next submits that the applicant is a government servant working as Deputy Director, On Farm Management Department in Grade 18 and being elder of the family has been arrayed only to malign him. He further adds that role attributed to the applicant is that he allegedly fired upon injured Syed Imdad Ali Shah @ Ali Abbas Shah which landed on his abdomen, however, injury so attributed to him has been found superficial and has been declared to be Jurah Ghyr Jaifah Mutalimah, punishable under Section 337-F(iii) PPC which carries punishment upto three years. Besides he was found innocent during investigation, therefore, his name was kept in column No.2 of the challan and was left off by the I.O; however, later he was joined by the trial Court. He, therefore, submits that the case against the applicant requires further enquiry. In support of his contentions, he has relied upon the cases of Khalil Ahmed Soomro v. The State (PLD 2017 Supreme Court 730), Jamaluddin and another v. The State (2023 SCMR 1243), Muhammad Umar Waqas Barkat Ali v. The State and another (2023 SCMR 330), Nasar v. The State and others (2017 SCMR 130), Sharif Khan v. The State and another (2021 SCMR 87) and Fahad Hussain and another v. The State (2023 SCMR 364).

4. Learned D.P.G appearing for the State, after going through the case file submits that case against the applicant requires further enquiry, therefore, he has no objection for grant of bail.

5. Complainant present in person opposes the bail application on the ground that applicant was in company of co-accused who made demand of Bhatta (Ransom) from the injured and has also been assigned specific role of causing firearm injury to the injured, therefore, he is not entitled for the bail.

6. Heard learned counsel for the parties and perused the record.

7. Admittedly the incident had occurred on 04.11.2023 at 1250 hours whereas the FIR thereof was lodged on 04.11.2023 at 2300 hours with delay of about 9 hours while the distance between police station and occurrence is about 2 k.ms and no plausible explanation has been furnished by the prosecution for such an inordinate delay. The delay in criminal cases has always been held by superior Courts to be fatal for the prosecution. The injury allegedly attributed to applicant falls under Section 337-F(iii) PPC and carries maximum punishment of three years, hence does not fall within ambit of prohibitory clause of Section 497 Cr.P.C. The injury attributed to the applicant has not been declared by the Medico Legal Officer to be detrimental to the life of injured nor is grievous in nature. The applicant is a government servant working as Deputy Director, On Farm Management in Grade 18 hence the plea taken by learned counsel for the applicant that he being elder of the family has been arrayed only to malign him and is motivated for caprice and ulterior motive to humiliate and disgrace him in case of arrest, can not be taken out of consideration. Perusal of challan sheet itself reveals that prosecution was not able to collect material against applicant/accused to send him for trial, therefore, his name was recommended to be placed in column No.2. This aspect also makes the case of the applicant/accused to be of further inquiry as envisaged under Subsection (2) of Section 497 Cr.P.C. The case has been challaned and the applicant, after furnishing surety before this Court, has surrendered before the trial Court. Since, the applicant is a government servant, there is no likelihood of his absconsion and tampering with the prosecution evidence. As far as allegations leveled by the prosecution against the applicant is concerned, the prosecution has to establish its charge by way of recording evidence and then the trial Court has to determine the accusation against the applicant.

8. In the case of Aamir Bashir and another v. The State and another (2017 SCMR 2060), the honourable Apex Court held as under:

“Besides making out a prima-facie case for the grant of pre-arrest bail, the accused petitioner has to show some mala fide on the part of the complainant and the investigating-agency, motivated by caprice and ulterior motive to humiliate and disgrace the accused person in case of arrest. however, at bail stage, except in very rare cases, it is difficult for an accused person to furnish tangible proof about the element of mala fide or foul play on the part of the complainant or the arresting agencies, therefore, the Court has to look at the material available on record and draw inferences therefrom about the mala fide or ulterior motive on account of which the intended arrest of the accused is motivated. The Court also reiterated the guiding principles laid down in the case of Khalid Javed Gillan v. The State (PLD 1978 SC 256), that while deciding bail petitions only a tentative assessment .of the material and facts available on record is to be made and deeper appreciation of the same-shall be avoided and that any fact which may not be sufficient to cast doubt of absolute nature on the prosecution case, but equally sufficient to be considered for grant of bail, cannot be lightly ignored.”

9. The basic philosophy of the criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not. In order to ascertain whether reasonable grounds exist or not, the Court should restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused person(s). Reliance is placed in the case of Fahad Hussain and another v. The State through Prosecutor General Sindh (2023 SCMR 364).

10. In the case of Khalil Ahmed Soomro and others v. The State (PLD 2017 S.C 730) learned Apex Court while discussing the nature of injuries as well as malafide has granted bail to the petitioners therein by holding in Paras No.4 and 5 of said judgment which reads as under:

“ 4. On merits we have found that all offences of the above nature are punishable by way of imprisonment which do not fall within the prohibitory part of section 497, Cr.P.C. and when the petitioners are entitled to post arrest bail thus, their prayer for pre-arrest bail, if declined, would be a matter of technicality alone while on the other hand they are likely to be humiliated and disgraced due to arrest at the hands of the local police.

5. Although for grant of pre-arrest bail one of the pre-conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide. In this case, it appears that net has been thrown wider and the injuries sustained by the victims except one or two, have been exaggerated and efforts have been made to show that the offences are falling within those provisions of law, punishable with five years or seven years’ imprisonment. All those aspects if are combinedly taken, may constitute element of malafide.”

11. Since the applicant is a government servant, if he will be arrested then he will not only lose his liberty, prestige and honour but also his service, which is most serious option. During investigation he was found innocent hence was let off by the police, therefore, basic ingredients for grant of pre arrest bail as has been laid down by learned Apex Court in the case of Rana Muhammad Arshad v. The State (PLD 2009 S.C 427) are fully attracted in this case.

12. For what has been discussed above, case against the applicant requires further enquiry. Consequently, this bail application is hereby allowed. The interim pre arrest bail already granted to the applicant vide order dated 31.01.2024 is hereby confirmed on the same terms and conditions.

13. Needless to observe that the observations made herein above are tentative in nature which shall not influence the mind of trial Court while deciding fate of the main case.

JUDGE

shabir