ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl.Bail Application No.S-586 of 2024

(Jongal Khan @ Babal & another 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. Abid Hussain Qadri, advocate for the applicants.

Mr. Muhammad Noonari, Deputy Prosecutor General.

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O R D E R

NISAR AHMED BHANBHRO, J;- The applicants are booked in F.I.R No.38 of year 2024 of Police Station Abad, District Jacobabad, for offences punishable under Sections 324, 337-H(ii), 337-Ai, Fi, 147,148,149 PPC. Applicants surrendered before the Court of Learned District and Sessions Judge Jacobabad by filing pre-arrest bail application No 1000 of 2024 Re – Jongal Khan @ Babal and others versus the State, which was assigned to the Court of Learned II Additional Sessions Judge Jacobabad (the Trial Court) for disposal in accordance with law. The Trial Court vide order dated 03.10.2024 declined the bail plea of applicants Jongal Khan @ Babal and Riaz Hussain while confirmed the bail of co-accused Shahzaib and Nawab Khan @ Zohaib. Applicants seek pre arrest bail in above mentioned FIR through instant application.

2.         Facts in brief leading to this application for grant of pre arrest are that on 22.09.2024, complainant Mohammed Sharif Sarki set law into motion by recording FIR at Police Station Abad, District Jacobabad, alleging therein that complainant party owned a shop and hotel at Koreja minor, looked after by them. Accused Babal and brothers of complianant Allah Warrayo alias Dado and Mohammed Sadiq had a brawl, on which accused Babal used to send threats of consequences. On 21.09.2024, at about 10.30 p.m, in the night, complainant and his brother Allah Warrayo @ Dado and Muhammad Sadiq were present at the hotel and Kiryana shop situated near Koreja Minor, the bulbs were lightening, when they saw accused Babal with iron rod, Riaz with lathi both sons of Sodhal alias Brohi, Shahzaib with gun, Zohaib with T.T pistol both sons of Raees Babu all by caste Koreja and two unknown accused persons having weapons whose faces were unmuffled and they would be identified if seen again came there by feet. Upon arrival accused Babal hurled abuses on complainant party and gave hakals that their days were numbered. The accused having weapons fired directly upon Allah Warrayo and Muhammad Siddique with intention to commit their murder who rescued themselves by falling down. Meanwhile accused Babal caused iron rod blow over the head of Allah Wararyo @ Dado with intention to commit his murder, he again caused iron rod below on his right leg, accused Riaz caused lathi blow upon head of Muhammad Siddique with intention to commit murder and again caused lathi below over left elbow then all the accused persons caused iron rod, stick, butt, kicks and fists blows. Complainant beseeched accused in the name of Allah and Quran. Accused went away resorting to aerial firing and extending threats of dire consequences if complainant party made hue and cry. Complainant saw his brother Allah Warrayo @ Dado had sustained injuries on head, right and left legs and blood oozed from injuries, Mohammed Sadiq had sustained injury on head and blood was oozing.  Complainant removed injured to hospital after getting referral letter from police station and got medical treatment of injured at Jacobabad hospital, thereafter, he appeared at police station and recorded FIR against accused.

3.         Learned counsel for the applicants contended that there is delay of about 18 hours in registration of FIR for which no plausible explanation has been offered. The alleged injuries opined by the Medico Legal Officer fall within the definition of an offence under Section 337-Aii and 337 F(v) punishable up to five years and do not attract prohibitory clause of Section 497 Cr.PC. From narration of witnesses and complainant ingredients of offence under section 324 PPC are lacking. The enmity between parties stands admitted; applicants are respectable persons, they have been roped into a fabricated case with mala fide intentions to settle the scores of enmity, applicants apprehend their unjustified arrest at the hands of police, they shall face humiliation if arrested. He prayed for confirmation of bail.

4.         Learned Deputy Prosecutor General has opposed the grant of bail on the ground specific role of causing injuries upon head is assigned to applicants, which is a vital part of body and injury has been opined by doctor to be Shajja e Madiha which is punishable up to five years. He contended that applicants duly armed with weapons attacked upon complainant party at their hotel and shop, ingredients of section 324 PPC are attracted which is punishable for ten years and falls within the prohibition contained in section 497 CrPC, there are no mala fides on the part of complainant to falsely involve applicants, they do not deserve the extra ordinary concession of pre arrest bail. He prayed for dismissal of bail.

5.         Heard learned counsel for the applicants, learned Deputy Prosecutor General and perused material available on record. Despite service of notices, complainant has failed to turn up, this being a pre-arrest bail application cannot be kept hanging for long period, the same is being decided with the assistance of Learned Prosecutor.  

6.         Tentative assessment of material collected during investigation revealed that there is delay of about 18 hours in registration of FIR, though police station is located at distance of 6 - 7 kilometers for which no plausible explanation is available on record. Soon after the incident Complainant along with injured witnesses appeared at police station, obtained letter for treatment but did not describe details of incident, and left police station without recording complaint though allegation of serious assault with sophisticated weapons was alleged in the crime report, which might have adversely affected hotel activities. Delay in registration of FIR per se would not be a ground for grant of bail but approaching police twice for the same purpose would create reasonable doubt on the veracity of allegations particularly when parties were at daggers drawn against each other, adverse inference can be drawn for cooking up story on account of enmity. Alleged place of incident was a hotel but none from public was associated as witness to seek independent corroboration. The complainant disclosed the source of identification as bulb lights but no such recovery was affected from place of incident during inspection. The case has been challaned, applicants are not required any more for purpose of investigation, no recovery has to be affected from them. They are regularly attending trial Court. The final medical certificate issued in favor of injured reveal that both sustained two injuries, which is not in consonance with the statements of witnesses recorded during investigation and version of complainant developed in FIR, wherein severe beating is alleged. There is no fracture of bones or skull and alleged injuries fall within the definition of section 337 Aii which is punishable up to 5 years, and do not attract the prohibitory clause of Section 497 CrPC. The culpability of applicants for offence punishable under section 324 PPC requires determination through evidence during trial. Applicants remained on interim pre-arrest bail for about more than 6 months, there is no allegation of misuse of concession against them. In view of above in my opinion, on tentative assessment of material available on record, the case of applicants calls for further inquiry into their guilt.  

7.         The relief of the pre arrest bail is an extra ordinary concession which is granted in rare cases, to avail benefit of such concession it is obligatory upon the accused to show that prosecution was motivated and he was facing trumped up charges, intended arrest was tainted with malice and ulterior motives and if materialized he shall suffer humiliation and irreparable loss to reputation. Not only the aspect of mal fides and ulterior motives on the part of prosecution are the ingredients which require consideration while deciding application for grant of pre arrest but merits of the case can also be looked into. If Court comes to a conclusion that the case is one which calls for further probe into the guilt of accused and falls within limbo of sub section 2 of section 497 CrPC the concession of bail will be extended as matter of right not the grace.  

8.         Honorable Supreme Court of Pakistan in the case of Saeed Ahmed and another Versus the State reported in PLD 2024 Supreme Court 1241 has been pleased to hold as under:

“9. In view of all the above, the apprehension of the petitioners about their arrest by the police at the behest of the complainant with ulterior motives to create humiliation and unjustified harassment cannot be held vague or baseless. The investigation has already been completed. No recovery of firearms has been affected from the petitioners. Admittedly, the petitioners facing trial are no more required for any further investigation or probe. The guilt or innocence of the petitioners is yet to be determined at the trial after recording evidence. According to settled principles of law bail cannot be withheld as mere punishment.

10.  On the basis of tentative assessment of the material so far available on record, the case against the petitioners falls within the ambit of further inquiry as well. In the cases of "Salman Mushtaq v. The State"¹, "Ahtisham Ali v. The State"², "Fahad Hussain v. The State"³, "Gulshan Ali Solangi v. The State"⁴, "Muhammad Sadiq v. The State"⁵ and "Rana Muhammad Arshad v. Muhammad Rafique"⁶ apart from the grounds of mala fide, ulterior motives and abuse of process of law, the accused were granted pre-arrest bail on the ground of further inquiry on the basis of tentative assessment of the material available on record.”

9.         For what has been discussed herein above, the prosecution has collected tenuous evidence to believe that the accused were connected with the commission of crime, implication of accused on account of enmity and absence of the wounds of severe beating on the person of injured as alleged in the FIR, make the case of accused that of further inquiry, besides mala fides the accused have made out a case for grant of bail on merits that of further inquiry. Consequently, this application is accepted and interim bail earlier granted to the applicants is confirmed, however subject to furnishing additional surety of Rs.50,000 each to the satisfaction of learned Trial Court. Needless to say that the trial Court would be at liberty to proceed under Section 497 (5) CrPC without making any reference to this Court, if the applicants misuse the concession of bail in any manner.

            Assessment of material herein above is tentative in nature and restricted to deciding the bail, it would not affect the merits of case during trial.

    JUDGE