IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Bail Application No.S-322 of 2021

Crl. Bail Application No.S-353 of 2021

Crl. Bail Application No.S-354 of 2021

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE.

1. For orders on O/objection at flag-A.

2. For hearing of bail application.

Date of hearing 01.11.2021

Mr. Kashif Mushtaque Bohio Advocate along with applicants on bail.

Mr. Deedar Ali M. Chohan Advocate along with complainant.

Mr. Aftab Ahmed Shar Addl.PG Sindh for state.

***************

O R D E R

MUHAMMAD SALEEM JESSAR, J; By this common order, I intend to dispose of aforementioned Crl. Bail applications as same are arising out of same FIR and common question of law as well as facts are involved.

2. The applicants Ashfaque, Sudheer and Jawad alias Javed in Crl. Bail application No.S-322 of 2021 and S-353 of 2021 seek their admission on pre-arrest bail, whereas applicant Wajid Ali son of Qurban Ali Khan Mangno in Crl. Bail application No.S-354 of 2021 seeks release on post-arrest bail in Crime No.63 of 2021 registered at Police Station, Naushehro Feroze under Sections 452, 382, 337A(i), 337A(iii), 114, 336 PPC. The bail plea raised by applicants before Court below were declined through common order by means of order dated 27.05.2021, hence this bail application.

3. Since, the facts of the prosecution case are already mentioned in the FIR as well as memo of bail applications which are part and parcel of the record therefore, there is no need to repeat the same.

4. Per prosecution case accused Ashfaque was having hatchet in his hand; however, he did not use the same at the time of incident. The role attributed to accused Sudheer is that he was carrying Danda (heavy wooden stick) through which he broken solar plates subsequently he took away some articles, therefore, Section 382 PPC was inserted in the FIR. The role attributed to accused Wajid Ali (who is behind bars) is that he caused piece of burnt brick blow to Mst. Rani which landed on her nose as well as face thereby her nose was fractured and some of her teeth were misplaced/broken, therefore, Sections 337A(iii) and 336 PPC were applied by the police in FIR as well as in challan. As far as role attributed against applicant/accused Jawad alias Javed is concerned, he while having lathi in his hand used the same and caused lathi blow to Mst. Rani which landed on her head; however, injury allegedly attributed to him was declared as ‘Shujjah-i-Khafifah’ which is punishable under section 337A(i), PPC and is bailable.

5. Learned counsel for the applicants during course of the arguments has contended that the applicants are innocent and they have been falsely implicated in the case by the complainant with malafide intentions and ulterior motives. Further contended that the parties are brothers and sisters inter se, and instant FIR has been lodged owing to the dispute in respect of share of landed property left by their elders; however, no such incident had ever occurred. Mr. Bohio submitted that the applicants being share holders of the property in dispute had made demand of their due share, upon which the complainant, who intends to take lions share, became annoyed and has cooked-up false criminal case so that applicants may surrender their due share in his favour. It is also argued that there is a delay of 12 days in lodgment of the FIR for which no plausible explanation was furnished by the prosecution for such an inordinate delay which reflects that the complainant concocted the story and has arranged false medical certificate(s). He further submitted that applicants who have been enjoying the concession of extra ordinary relief have been appearing before the trial Court regularly and did not misuse the concession extended to them hence, their case falls within the ambit of further inquiry as is embodied u/s 497(2) Cr.P.C. As far as alleged broken teeth of Mst. Rani are concerned, as per his instructions, same were already broken and a piece of burnt brick cannot cause such damage hence, loss to the body of men and women lacking such eventuality as mentioned in this case. He; however, submitted that by granting these applications they may be enlarged on bail. Learned counsel in support of his stance in the case has relied upon the cases of Basharat Ali and another v. The state (1993 MLD 159), Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others (1996 SCMR 1845).

6. Conversely, learned Additional Prosecutor General submits that applicant Ashfaque though was armed with hatchet but he did not use the same while accused Jawad alias Javed though allegedly caused lathi blow to Mst. Rani; however, the injury sustained by her was declared as bailable therefore, he has no objection for grant of bail application to the extent of accused Ashfaque and Jawad alias Javed. He; however, opposed the bail application of accused Sudheer as he allegedly caused damages to the Solar plates and thereby taken away some of the plates. Beside, accused Wajid Ali also caused burnt brick blow to Mst. Rani, which resulted into damage of her teeth as well as fracture of nose hence, opposed the bail to the extent of applicants Sudheer and Wajid Ali. He; however, does not controvert the fact that nothing incriminating was secured from Suhdeer except piece of burnt brick which is shown to have been recovered from Wajid.

7. Mr. Deedar Ali M. Chohan Advocate appearing for complainant has opposed the bail applications on the ground that all the accused are nominated in the FIR with specific role, therefore, they do not deserve any leniency in shape of their enlargement on bail. He further submitted that all the accused formed an unlawful assembly and assaulted house of complainant thereby caused damages to house hold articles, besides took away some of the articles therefore, they do not deserve any leniency in shape of release/admission on bail. In support of his contentions, he has placed reliance upon case of Farhan Ahmed alias Farhan v. The State and others (2016 YLR Note 99), 2. Muhammad Akber alias Ghulam Akber v. The State (2007 YLR 1313) and one unreported order passed by this Court in Crl. Bail application No.S-426 of 2021 dated 10.09.2021.

8. I have heard learned Counsel for the parties and also perused the record as well as the case law cited at the Bar.

9. Admittedly, the parties are inter se and are in blood relations to each other. It appears that dispute arose between both the parties is over landed property which is admitted by the complainant in his FIR, if contents of FIR are presumed to be true for a while even then same was got registered with delay of about 12 days for which no plausible explanation has been furnished. The delay in criminal cases has always been held by the Superior Courts to be fatal to the prosecution. As far as the application of Section 337A(iii) as well as 382 PPC is concerned, the punishment whereof as provided by law is upto Ten years. However, the allegations leveled by the prosecution witnesses are yet to be established by the prosecution and are to be determined by the trial Court after recording evidence of the parties. The parties are related to each other viz. brothers, sisters and nephews inter se, therefore, the question of their absconsion and tampering with the prosecution evidence does not arise. As far as application of Section 336 PPC is concerned, same is yet to be established by the prosecution after recording evidence of the witnesses. The grant of bail to accused does not mean to discharge him from accusation, but only his custody is to be shifted from jail authorities into the hands of surety, as under the law there is no provision to compensate the accused if he is declared innocent after termination of trial. As far as law referred to by learned Counsel for the complainant is concerned it has got no relevancy as the facts and circumstances of instant case are distinguishable from the facts and circumstances of the cases relied upon by Mr. Chohan. The plea taken by learned defence counsel to the effect that the complainant being greedy intends to take lions share, carries much weight. In view of above discussion, I am of the opinion that case against applicants is purely covered by Sub-Section (2) of Section 497 Cr.P.C and requires further inquiry.

10. Resultantly, interim pre-arrest bail already granted to applicants/accused, namely, Ashfaque, Sudheer and Jawad alias Javed vide orders dated 02.06.2021 and 10.06.2021 respectively are confirmed on the same terms and conditions while the post arrest bail application No.S-354 of 2021 in respect of applicant/accused Wajid Ali son of Qurban Ali Khan Mangno is allowed. The applicant Wajid Ali shall be released forthwith subject to his furnishing solvent surety in the sum of Rs.50,000/- (Rupees Fifty thousand) in the like amount the satisfaction of trial Court.

11. Needless to say, the observations made here-in-above are tentative in nature and only for the purpose of this bail application. Nothing herein shall affect the determination of the facts at the trial or influence the Trial Court in reaching its decision on merits of the case.

12. Above are the reasons of my short order dated 01.11.2021.

Office is directed to place a signed copy of this order in above captioned Crl. Bail application(s).

J U D G E

Ihsan