ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Bail Appln. No.S-304 of 2024.
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
1. For orders on office objection ‘A’.
2. For hearing of bail application.
10.10.2024.
Mr. Imdad Ali Tunio, advocate for the applicant along with applicant.
Mr. Abdul Rauf memon, advocate for the complainant.
Mr. Aitbar Ali Bullo, D.P.G.
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KHADIM HUSSAIN SOOMRO, J- Applicant Abdul Sattar son of Adam Khan, seeks pre arrest bail in Crime No.15/2024, registered at Police Station B-Section Thull, District Jacobabad, for offence punishable under sections 452, 337-H(ii), 337-F-(v), 504, 109, 147, 148, 149, PPC.
2. Brief facts of the prosecution case are that on 22.04.2024, complainant Abdul Kareem Soomro, got registered FIR, mentioning therein that one year ago, niece of accused Abdul Sattar Soomro, left the house and her false case was registered by Abdul Sattar against the brothers of complainant, namely, Abdul Hameed and Shaman Ali. On 15.04.2024, complainant along with his cousin Majid Ali son of Kareem Bux and Khuda Bux son of Dhani Bux were sitting in the house, where five persons, namely, 1)Abdul Sattar, 2)Abdul Hameed, 3)Arbab Ali with lathies, 4)Taj Muhammad with gun and 5) Zafarullah with T.T Pistol entered in his house and asked him to give ‘Faisla’ of ‘Karap’. On saying so, accused Khadim Hussain instigated to others to cause injury to Abdul Kareem Party, accused Abdul Sattar caused lathi blow to the cousin Majid Ali, which hit him at his right arm, who fell down, while accused Zafarullah and Taj Muhammad caused aerial firing for creating harassment. Then, all the accused persons escaped away from the place of incident. They rushed at PS and obtained letter for treatment and certificate, after treatment complainant lodged the FIR to the above effect.
3. Learned counsel for the applicant contends that the applicant is innocent and he has been falsely implicated in this case; that the alleged incident took place on 15.04.2024 and the same was reported on 22.04.2024 with the delay of seven days regarding which no plausible explanation has been furnished by the complainant; that the medical certificate was issued on 18.04.2024 despite the complainant did not appear before the Police Station and he appeared at PS after the delay of four days; that as per medical certificate there is only swelling at the right wrist, but the Medico Legal Officer opined the injury as Jurh Ghyr Jaifah Hashimah falling under section 337-F(v) PPC and that medical certificate was called in question before the Medical Board and the said Board has observed that the possibility of accidental injury could not be ruled out; that there is long standing enmity between the parties and various FIRs have been registered against each other, such as Crime No.38/2023, 15/2024 & 61/2023 at same Police Station; that the present FIR has been registered just to pressurize the applicant party to withdraw from C.P. No.D-497/2023, which was instituted by one Mst. Janul Khatoon, for the recovery of Mst Nusrat; that the offence does not come within the prohibitory clause of section 497, Cr.P.C. Learned counsel has relied upon the cases reported as 2017 P.Cr.L.J Note 219, 2007 YLR 1159 & 2023 YLR 1062. Hence he prays that the applicant may be admitted to pre arrest bail.
4. On the other hand learned counsel for the complainant vehemently opposes the grant of interim bail on the ground that the applicant is nominated in the F.I.R with specific role; that the P.Ws have fully supported the case of prosecution in their 161, Cr.P.C statements; that the medical evidence corroborates with the ocular version; that the applicant has repeated the offence for which FIR bearing Crime No.109/2024 has been registered against him; that the complainant has also filed cancellation of bail before the trial Court in Crime No.109/2024; that section 337-F(v) is not bailable, therefore, the applicant is not entitled for extra ordinary relief for grant of pre arrest bail.
5. Learned D.P.G candidly concedes to the submissions advanced by the learned counsel for the applicant on the ground that the Medical Board does not demonstrate the broken of bone but it shows only swelling and the offence with which the applicant is charged does not fall within the prohibitory clause of section 497, Cr.P.C, therefore, he has no objection for grant of pre-arrest bail.
6. Heard learned counsel for the applicant, learned counsel for the complainant and learned D.P.G and perused the material available on record.
7. Admittedly, there is delay of seven days in lodgment of F.I.R regarding which no plausible explanation has been furnished by the complainant. The injury sustained by the injured/Pw Majid Ali does not demonstrate bone broken. The applicant had challenged the Medical Certificate and the said Board has observed that possibility of accidental injury cannot be ruled out. There is long standing enmity between the parties and various FIRs have been registered against each other. During the course of investigation, the I.O has recommended the case to be disposed of under ‘C’ class but the concerned Magistrate did not concur with the opinion of the police and took the cognizance of the case. Learned counsel for the applicant/accused has also pleaded mala fide on the part of the complainant that due to enmity and ulterior motives, the applicant/accused has been booked in this case, otherwise the applicant has no concern with the alleged offence. At bail stage only tentative assessment is to be made and the offence with which the applicant is charged does not fall within the prohibitory clause of Section 497, Cr.P.C and grant of bail in such cases is rule and refusal is an exception. Under the aforesaid circumstances, the applicant has made out a case for grant of extra ordinary relief in the shape of pre-arrest bail. Resultantly, instant bail application is allowed and ad-interim pre arrest bail granted to the applicant vide order dated 29.05.2024 is hereby confirmed on the same terms and conditions.
Judge
M.Yousuf P/**