IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Crl. Bail Application No.S-630 of 2019.

    

DATE OF

HEARING

 

ORDER WITH SIGNATURE OF JUDGE

 

 

For the hearing of bail application.

 

 

 

Date of hearing              31.01.2020.

 

 

Mr. Saifullah Soomro Advocate for the applicant.

Mr. Mohammad Ali Naper Advocate for complainant.

Mr. Abdul Rehman Kolachi DPG for State.

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                                                O R D E R

 

ZULFIQAR ALI SANGI, J;               Through instant bail application, applicant Mohammad Qasim seeks Pre-arrest bail in Crime No.78/2019 registered at Police Station, Kandhra for the offence under Sections 324, 337F (ii), 337A(i), 337F(i), 337L(ii) 504, 34 PPC. Earlier his bail application was declined by learned Additional Sessions Judge (Hudood) Sukkur vide order dated 11.11.2019.

 

2.                The brief facts of the prosecution case are that on 16.06.2019 at 1530 hours the complainant Abdul Sattar lodged FIR at Police Station, Kandhra stating therein that on 29.05.2019 he along with brother Abdullah and nephew Toufique Ahmed were present in the house it was about 10:00 p.m. the accused Mohammad Qasim came outside the house and called them they in all three went outside the house and that accused Mohammad Qasim with hatchet, Mohammad Hanif and Mohammad Anwar all three sons of Ghulam Mohammad both having lathis asked complainant that your sister Maryam Khatoon has bothered us by filing case in the Court for getting share of land and you may withdraw then on which he replied that whatever decision of the Court that will be acceptable form them. Due to annoyance, accused Mohammad Qasim caused a hatchet blow to him which hit him on his backside of neck and blood was oozing while accused Mohammad Hanif and Mohammad Anwar caused lathi blows to his nephew Toufique Ahmed  Buriro on his head and arm. They raised cries, thereafter all accused went away by issuing threats and abusive language. Abdullah took him and Toufique to Police Station got the letter and referred to RHC Kandhra wherefrom they referred to GMC Hospital Sukkur. Hence, the complainant lodged FIR.

 

3.                Learned Counsel for applicant contends that the applicants have falsely been involved in this case by the complainant with ulterior motives; that there is unexplained delay of about 16 days in registration of FIR for which no plausible explanation has been furnished by the complainant; that FIR was registered under section 337F (ii), 337-Ai, 337-Fi, 337-L2, 504 and 34 PPC which offence does not fall within the prohibitory clause of section 497 Cr.P.C and complainant with mala fide intentions recorded further statement to bring case under section 324 PPC and on such basis section 324 PPC was added by the investigation officer in the challan; that there is civil dispute in between the parties for which both parties filed civil suits which are pending before the courts having jurisdiction; He further submitted that case has been challaned and applicant is no more required for further investigation. He relied upon the cases of Ali Baig alias Ali and 2 others V. The State 2019 YLR 178, Shahvaiz alias Shoaibi V. The State and another 2019 P.Cr.L.J Note 158, Shakar Wali V. The State 2019 P.Cr.L.J Note 57, Abdullah and 3 others v. The State and another 2018 P.Cr.L.J 763, Azmat Khan alias Jalil V. The State through Abdus Sami 2018 YLR Note 205, Ashrat and another V. The State 2015 GBLR 95, Beejal and another V. The State 2014 P.Cr.L.J 261, Umar Hayat V. The State and others 2008 SCMR 1621 and Mumtaz Hussain and 5 others V. The State 1996 SCMR 1125. Lastly, he prayed for confirmation of bail.

 

4.                Conversely, learned Deputy Prosecutor General appearing for the State assisted by Counsel for complainant vehemently opposed the bail and contended that the delay has been explained by the complainant as when he received the final MLC from the doctor he went at police station and lodged the FIR; that injuries caused by applicant to the injured declared by the doctor as Ghayr-Jaifa-Badiah which provides punishment up to three years and is not bailable; that all the prosecution witnesses fully supported the version of complainant and the same is supported by the medical evidence; that complainant filed application under section 173 Cr.P.C which was disposed of vide order dated:29-06-2019; that applicant was not arrested by the police, therefore, recovery was not effected which is to be recovered from the applicant; that no malafide has been pointed out by the applicant for grant of bail before arrest; He relied upon the cases of 2012 MLD 337, 2018 MLD 724, 2003 MLD 718, 2018 YLR 1690, 2011 P.Cr.L.J 852, 2016 SCMR 2064 and 2009 P C.L.J 405, lastly both the counsel argued that bail application may be dismissed.  

 

5.       Heard arguments of learned Counsel for the parties and perused the record and case law relied upon by them with their able assistance.

 

6.       According to the complainant present incident was took place on 29-05-2019, provisional certificate was issued by the doctor on 30-05-2019 and final medical certificate was issued on 12-06-2019 but the FIR was registered on 14-06-2019, the explanation furnished by the complainant is not satisfactory and from the conduct of complainant, it appears that the FIR was registered after consultation and deliberation with some malafide intentions and ulterior motives.

 

7.       The record reflects that there is dispute in between the parties for which  Muhammad Hanif filed civil suit No: 75 of 2018 and Mst: Maryam and others filed civil Suit No: 21 of 2019 in which applicant is Respondent No: 4, all these suits were filed by the parties before the registration of present FIR.

 

8.       Ocular evidence is contradictory with the medical evidence as in the FIR complainant stated that he received only one injury of hatchet but according to the medical certificate he received two injuries one of sharp cutting and another of hard and blunt substance which creates doubt in the prosecution story.

 

9.       The final medical certificate issued by the doctor reflects that the injuries were declared as injury No:1. Ghayr-Jaifah-Badiah and injury No:2. Other hurts section 337 L2, which provides punishment for up to three years and the same does not fall within the prohibitory clause of section 497 Cr.P.C. It is a well-settled principle of law that the grant of bail in cases covered under the said provision is rule and refusal is an exception. Reliance is placed in cases of Tariq Bashir v. The State (PLD 1995 SC 34) and Muhammad Tanveer V. The State and another (PLD 2017 SC 733).

 

10.     A further statement of complainant reflects that the same was managed one only to bring the case under section 324 PPC and at the stage of bail intention of the accused cannot be considered as it is to be decided by the trial court after recording the evidence of prosecution witnesses. It is a well-settled principle of law that deeper appreciation of evidence is not permissible under the law for deciding the bail plea and material is to be assessed tentatively, The material includes FIR, the statement under section 161 CR.P.C of the witnesses, medical evidence and recovery if any.

 

11.         From the facts and circumstances as stated above, and from the tentative assessment of the material available on record the applicant has made out a case for grant of bail, therefore, bail application is allowed, interim pre-arrest bail already granted to the applicant named above vide order dated 19.11.2019 is confirmed on same terms and conditions.

 

12.         Observations made hereinabove are tentative and will not cause any prejudice to either party at the trial.

 

 

         Bail application stands disposed of.

 

                                                          J U D G E