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

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