ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT, LARKANA.

Cr. Bail Appln.No.S- 401 of 2013.

 

Date                           Order  with signature of judge

 

                        1.For order on office objection as flag A.

                        2.For Hearing.                                                         

 

06.11.2013.

Mr.Habibullah G. Ghouri, advocate for the applicants.

Mr.Zulfiqar Ali Jatoi, Deputy Prosecutor General. 

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ABDUL MAALIK GADDI-J.:-  Applicants seek their release on bail in Crime No.40/2013 of Police Station Radhan District Dadu for offences  U/S 337-F(v), F(i), A(i), 337-H(ii), 506/2, 34 PPC. 

2.                     Brief facts as alleged in the FIR are that on 24.06.2013 complainant Ali Asghar reported the matter at P.S that on 21.06.2013  he alongwith  his son Abdul Haque and maternal nephew Abdul Aziz had gone towards Noor Mosque for “Fajar prayer”, after praying when they were reached at  Ranjhan Pump at Radhan Station when at about 06.00 hours  they saw accused Ali Sher armed with danda, Ali Nawaz armed with Repeater, Jan Muhammad armed with Pistol, Sadam armed with danda came there, and started abusing them.   The accused on gun point got down the complainant from motorcycle when Ali Sher  and Ali Nawaz caused danda and kicks blows.  Accused Ali Nawaz also caused butt blows of Repeater on arms, head and other parts of body of the complainant, as such blood was started oozing.  On his cries, his son Abdul Haque, nephew Abdul Aziz rescued him from the clutches of accused thereafter accused persons  fledaway while making aerial firing.

3.                     The bail application was moved  before the trial Court who refused bail on the grounds that the names of the applicants/accused  appear  in the FIR with specific role of causing injuries to complainant duly supported by medical evidence and though the offences are not covered  by prohibitory clause of section 497 Cr.P.C, the Court can decline  bail in exceptional circumstances.

4.                     Heard learned counsel for the applicants/accused, D.P.G for the State  and perused the police file.

5.                     Learned  advocate for the applicants  submits that the complainant and all the P.Ws  are relatives to each other; that the alleged incident took place  on 21.06.2013 at about 6.00 a.m whereas FIR has been registered  on 24.06.2013 at 2.30 p.m, after the delay of about three days which  has not been explained.   As such, he was of the view  that  in the circumstances false  implication of the applicants/accused  in this case can not be ruled out.   He has  also submitted that the challan against applicants/accused  has  already been submitted in the trial Court and these applicants/accused are no more required for the investigation and that as per medical certificate  the injuries  attributed  to the present applicants/accused  have  not been declared  as dangerous    but have been declared  as Shajjah-i-Khafifah and Jurh Ghayr JaifahHashimah by the Medico Legal Officer,  which fall U/S 337-F(v)  and 337-L(ii) PPC  which carries punishment upto 5 years. According to learned counsel for the applicants/accused  thesaid punishment do not fall within prohibitory clause of section 497 Cr.P.C.  Therefore,  learned counsel for the applicants while relying upon the case law reported  in    2007 P.Cr.L.J 299  has prayed for grant of bail  in favour of the applicants.

6.                     Learned D.P.G  for the State  has  opposed  the bail application on the ground that names of the applicants  are appearing in FIR with specific role  of causing injuries  to the complainant, duly supported by medical evidence. 

7.                     The contention of learned counsel for the applicants   that   three days’ delay in lodging  of FIR  has not been explained.  The injured/complainant on 21.06.2013 after  the incident was over, went to  police station  and obtained the letter  for medical treatment but at that moment  no entry   was kept  at police station nor FIR was registered by him.  According to him, the medical certificate   was ready on 22.06.2013  but FIR was registered on 24.06.2013 after two days  delay  which was at all not explained.  In my tentative  view, the delay in lodging the FIR itself  is no ground for grant of bail, however, the delay can be considered   with the other grounds.  

8.                     From the medical report available on record, it is clear  that all the injuries  at the person of the complainant are punishable with five years or less and ordinarily  the bail is to be granted as a rule.   Learned trial Court  is correct that the court can decline the bail in recognized  exceptional circumstances but  in the order  no exceptional circumstances  have been mentioned and learned trial Judge has rejected bail without applying his judicial mind.   In the case reported as Tariq Bashir v. The State (PLD 1995 Supreme Court 34) the Honourable Supreme Court has laid down extraordinary and exceptional circumstances  for refusing bail  in the offences not falling under prohibitory clause of section 497 Cr.P.C.  In the same reported case.  The Honourable Supreme Court has held as under:

                        “It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-bailableoffences the grant of bail is not a right but concession/grace.  Section 497 Cr.P.C divided non-bailableoffences  into two categories i.e. (i) offences punishable with death, imprisonment of life or less than ten years.  The principle to be deduced from this provision of law is that in non-bailableoffences  falling in the second category  (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception.  So the bail will be declined only in extraordinary and exceptional cases, for example :--

(a)              Where there is likelihood of abscondance of the  accused;

 

(b)             Where there is apprehension of the offence being repeated if the accused is released on bail; and

 

(c)       Where the accused is a previous convict.”

9.                     The present case does not fall within exceptions laid down by the Honourable Supreme Court.

10.                   From the perusal of police papers it appears that  brother of applicants  had also registered a case against the complainant party being Crime No.295 of 2012 of Police Station Mehar. Besides civil litigation between the parties is also pending in the Court of Senior Civil Judge, Mehar, therefore, it also appears that parties  are already having inimical terms with each other.

11.                   There is no evidence on record that the present applicants/accused are previous convicts.  As observed above in this matter  challan has already been submitted  therefore, no question arise for tampering of prosecution evidence by the present applicants/accused.No  exceptional grounds appear in this case to withhold bail of the applicants.

12.                   Under the aforementioned facts and circumstances and following the principle laid down  in the above reported case, I am satisfied   that the present applicants  have made out a case  of grant of bail.   Bail is granted  to the applicants/accused subject  to their furnishing solvent surety in the sum of Rs.50,000/= each and P.R bond in the like amount to the satisfaction of trial Court.

 

                                                                                                            JUDGE