ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Application No.S-126 of 2025

(Ali Dost Jhangwani v. The State)

 

DATE

ORDER WITH SIGNATURE OF JUDGE

 

 

1. For orders on office objection “A”

2.      For hearing of bail application.

 

Date of hearing: 21.04.2025

Date of Order:    21.04.2025

 

Mr. Asif Luqman Abro, advocate for the applicant.

Mr. Muhammad Noonari, Deputy Prosecutor General.

                                    =.=.=.=.=.=.=.=.=.=.

     O R D E R

NISAR AHMED BHANBHRO, J;- The applicant seeks pre-arrest bail in F.I.R. No.16/2025 of P.S Naperkot, District Shikarpur. He had applied for grant of Bail Before Arrest which was declined by the Court of Learned 5th Additional Sessions Judge Shikarpur vide order dated 27.02.2025.

2.         Facts as set out in F.I.R are that complainant Wahid Bux Jhangwani lodged report at police station Naper Kot alleging therein that on 17.02.2025 he along with his wife Mst Manjho were grazing cattle in the fields, where Jamsher Jhangwani came and complained that cattle of complainant party had damaged crop and tried to take away cattle on which Jamsher and wife of complainant had had brawl. At about 12.00 noon, complainant, his brother Khabbar and wife Mst. Manjho aged about 40 years were present in the land, they saw and identified accused every one Jamsher, Karim Bux armed with guns, Ali Dost armed with K.K, Ali Khan armed with gun, Ali Murad and Shahnawaz with lathies came there and hurled abuse. Accused Jamsher Jhangwani instigated accused Ali Dost that Mst. Manjho wife of complainant has insulted him therefore she be killed, on which accused Ali Dost made straight fire from his K.K upon wife of complainant which hit her over elbow of right arm, who fell down yelling, other accused persons ran away while firing in the air. Complainant appeared at police station sought letter for treatment, removed injured to RHC Khanpur and after treatment again appeared at police station recorded his F.I.R.

3.         Applicant/ Accused surrendered before the Court of Learned District and Sessions Judge Shikarpur for grant of pre arrest bail which was declined vide orders dated 27.02.2025. Hence this application for grant of pre arrest bail

4.         Counsel for applicant/accused contended that applicant / accused has been roped in a false case with mala fide intentions and ulterior motives in order to harass and humiliate him due to enmity over landed properties between the parties which stands admitted in F.I.R. Applicant/accused is Nekmard of community, prior to registration of F.I.R, he filed an application under section 22-A Cr.PC against complainant party alleging harassment and threats to involve into false cases which was disposed of by the Court of learned 1st Additional Sessions Judge, Shikarpur, vide orders dated 27.01.2025 with direction to police to provide protection to applicant. He contended that as per version of complainant, injured sustained firearm injury of K.K but injury opined by Medico Legal Officer is simple in nature and fell within definition of Section 337-F(iii) PPC. He further contended that had it been fire of K.K, the wounds would not have been so simple. Mala fides and ulterior motives on the part of complainant are apparent on record as there is enmity over landed property between the parties. Case calls for further inquiry, alleged injury did not fall under prohibitory clause of Section 497 Cr.PC. Investigation is complete, challan has been submitted, and applicant is attending the trial Court regularly. All the witnesses are related inter-se and there is no apprehension of tampering with the prosecution evidence and complainant party. He prayed for confirmation of bail.  

5.         Learned D.P.G submits that per mashirnama of place of incident, no empty of K.K was secured, though three empty cartridges were found. As per FIR, injured sustained injury over right elbow, per memo of inspection of injuries, injured sustained injury over right hand which marks difference in seat of injuries. He, however, opposed the bail on the ground that there is specific role against accused.

6.         Heard learned counsel for the parties and perused material available on record.

7.         Tentative assessment of material available on record reveals that alleged incident took place at 12:00 noon and soon after the incident complainant along with injured went to police station but did not narrate the details of incident. Complainant recorded crime report at 1930 hours during his second visit, there is no explanation on record for such delay. There is marked difference in the FIR and mashirnama regarding seat of injury as complainant in FIR alleged that injured sustained injury over right arm elbow whereas per mashirnama of inspection of injuries she sustained injury over right hand. Per Medico-Legal Certificate no fracture was seen on the right arm and injury was opined as Shajjah Ghair Jaifah Mutalahimah (337 Fiii), an offence punishable up to 03 years and did not fall within the limb of prohibitory clause of Section 497 Cr.P.C. Charge under Section 324 PPC required evidence as there was no repetition of fire shot and injury was caused on non-vital part of body, and determined to be simple in nature. The investigation is complete, challan has been submitted before concerned magistrate where applicant remains present on each date. Applicant is not required by police for investigation and there is no allegation of misuse of concession of bail. The enmity between the parties stands admitted, thus implication of applicant under extraneous conditions cannot be rules out.  Under such circumstances, tentative assessment of the material on record, the case of applicant/accused calls for further inquiry.

8.         In view of the above discussion, apprehension of applicant about his arrest by  police at the behest of complainant with ulterior motives and malice cannot be held vague to be baseless. Custody of the applicant is not required as investigation is already complete. No recovery of firearms was affected from applicant as he joined investigation after the grant of interim pre arrest. The guilt or innocence of the applicant has yet to be determined at the trial after recording prosecution evidence.

9.         The Honorable Supreme Court in the case of Salman Mushtaq versus The State reported in 2024 SCMR 14 has held as under:

7.  The doctrine of 'further inquiry' refers to a notional and exploratory assessment that may create doubt regarding the involvement of the accused in the crime. The expression "reasonable grounds" as contained under section 497, Cr.P.C., obligates the prosecution to unveil sufficient material or evidence to divulge that the accused has committed an offence falling within the prohibitory clause of section 497, Cr.P.C. However, for seeking the concession of bail, the accused person has to -show that the evidence collected against him during the investigation gives rise to clear-headed suspicions regarding his involvement. While deciding bail applications, it is the elementary duty of the courts to apply a judicious mind tentatively to reach a just and proper conclusion on whether reasonable grounds are made out to enlarge the accused on bail. The axiom 'reasonable grounds' connotes and associates those grounds that are legally acceptable and based on reasons that attract the judicial mind, as opposed to being imaginative, fallacious and/or presumptuous. In the aforesaid situation, the possibility of mala fide intention in lodging the FIR cannot be ruled out, and, at this stage, there are no reasonable grounds for believing that the accused are involved; rather, there are sufficient grounds for further inquiry to prove the guilt of the accused persons.

10.       The Honourable Supreme Court of Pakistan in case of KHAIR MUHAMMAD and another Versus The STATE through P.G. Punjab and another reported in 2021 SCMR-130 held as under:

“The concept of pre-arrest bail is exceptional, it has to be exercised sparingly. The purpose behind is to save innocent persons from false allegations, trumped up charges and malicious prosecution at the end of complainant party. In the salutary judgment of this Court reported as "Meeran Bux v. The State and another" (PLD 1989 SC 347), the scope of the pre-arrest bail has been widened and as such while granting pre-arrest bail even the merits of the case can be touched upon. The petitioners are ascribed the role which was found false during the course of investigation. The injury ascribed to Bashir Ahmad was contradicted by medical evidence. Co-accused Khair Muhammad was found not to be present at the spot at the time of occurrence by the Investigating Officer concurred by Senior Police Officer. No recovery of any incriminating material is to be effected from the petitioners.”

11.       The purpose of grant of pre arrest bail is to save the innocent souls from trumped up charges, the victimization of police at the behest of complainant. Possibility of mala fide intention in implicating the applicant in FIR could not be ruled out, there were  sufficient grounds for further inquiry into the guilt of the applicant, under the circumstances, the applicant/accused has made out his case for grant of pre arrest bail on mala fides and merits aw well, accordingly pre arrest is confirmed on same terms and conditions. The observations made herein above are in perspective of bail and are tentative in nature and same shall not influence merits of the case at the trial.  The trial Court shall be at liberty to cancel the bail of applicant without making any reference to this Court if accused misuses the concession in any manner.

 

 

      JUDGE

 

 

.