ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-563 of 2021

Date	Order with signature of Judge

Applicants: Muhammad Musa and others

through Mr. Saifullah Soomro, Advocate

Complainant: Abdul Razaque, thrugh

Mr. Muhammad Farooque Ali, Advocate

State: Through Mr.Khalil Ahmed Maitlo, DPG

Date of hearing: 12.11.2021

Dated of order: 12.11.2021

O R D E R

Zulfiqar Ali Sangi, J: Applicants/accused Muhammad Musa, Muhammad Essa, Ahmed Ali, Muhammad Ali, Asadullah, Mujeeb-ur-Rehman all sons of Shah Nawaz, Ajab Gul, Sher Gul, both sons of Asadullah, Abdul Nasir son of Muhammad Yakoob, Siraj Dulha, Sadaf Musa, both sons of Muhammad Musa, Zain-ul-Abdin son of Adam, Abdul Waheed son of Rab Dino and Shoaib-ur-Rehman s/o Mujeeb-ur-Rehman all by caste Mirani, are seeking pre-arrest bail in FIR No.56/2021, registered at Police Station Baiji Sharif, District Sukkur, under sections 452, 147, 148, 149, 337-A(i), 337-F(i), 337-L(ii), 504, 506/2, and 324 PPC. Their earlier bail application was dismissed by the learned Additional Sessions Judge, Pano Aqil, vide order dated 31.08.2021. After rejection of their bail application, they approached this court for the same relief.

2. Concisely the facts of the prosecution are that on 23.09.2020 accused party had fought with the complainant party over landed property and such FIR bearing No.72/2020 was lodged at PS Baiji Sharif, which was later on disposed of/cancelled due to intervention of nekmards, however accused party remained annoyed. On 09.07.2021, complainant Abdul Razaque along with relatives Muhkum Deen, Akhtar Hussain, Muhammad Nawaz, Allah Wasayo, Naeem Yousif, Hamadullah, Waliyllah and Naveed Ahmed were available in the house of Muhkum Deen where at about 7.30 p.m accused Muhammad Musa, Muhammad Essa, Ahmed Ali Muhammad Ali having lathies, Asadullah, Mujeeb-ur-Rehman having hatchets, Ajab Gul with pistol, Sher Gul empty handed, Abdul Nasir with pistol, Siraj Dulah having lathi, Sadaf Musa having hatchet, Sadam Hussain having lathi, Zain-ul-Abbdeen having lathies, Abdul Waheed having hatchet, Shoaib-ur-Rehman and Mushab having lathies, entered into the house and accused having pistols asked to remain silent while accused Asadullah caused hatchet blow to Muhkum Deen on his head, accused Essa and Ahmed Ali caused lathi blows to Akhtar Hussain, accused Muhammad Ali caused lathi blow to Allah Wasayo, accused Saddam Hussain and Zain-ul-Abdin caused lathi blows to Naeem Yusif, accused Shoaib-ur-Rehman caused lathi blow to Hamadullah, accused musab caused lathi blow to Muhammad Nawaz, accused Sadaf Musa caused back side of hatchet blow to Naveed Ahmed, accused Abdul Waheed caused hatchet blow to Waliullah. Complainant beseeched them in the name of Almighty Allah to which they issuing threats went away. Complainant then brought the injured at PS and lodged the FIR.

3. Learned counsel for the applicants contended that the applicants have falsely been involved by the complainant due to previous enmity which is admitted in the FIR. He next contended that there is delay of two days in registration of FIR, which has not been explained by the complainant. He also contended that prior to this, complainant party had attacked upon the accused party and accused party had lodged such FIR No.57/2021, as such in order to pressurize them, present FIR was managed to falsely implicate the applicants. He further contended that all the witnesses are close relatives of the complainant as such they are interested. He further contended that all the sections to which the applicants/accused are charged are bailable except sections 452 and 506/2 PPC which too do not fall within the ambit of prohibitory clause of section 497 Cr.P.C, while application of section 324 PPC will be determined at trial after recording evidence. In support of his contentions learned counsel for the applicants placed reliance on the cases reported as 2020 SCMR 677, 2010 SCMR 1219, 2017 YLR Note 173, 2017 MLD 1299, 2019 YLR 1622, 2017 YLR 978 and an unreported order of this court dated 31.01.2020 passed in Cr.B.A.No.S-630/2019. Lastly He prayed that the interim pre-arrest bail granted to the applicants may be confirmed.

4. Mr. Muhammad Farooq Ali Advocate files vakalatnama on behalf of complainant and submits that the applicants were nominated in the FIR with specific roles and the offence falls within prohibitory clause of section 497 Cr.P.C, therefore, they are not entitled for the relief claimed.

5. Learned DPG adopted the contentions of learned counsel for the complainant and has opposed the confirmation of interim pre-arrest bail.

6. I have heard the learned counsel for the parties and perused the material available on record with their able assistance.

7. Admittedly there is delay of two days in registration of FIR, which has not been properly explained by the complainant. Sections 337-A(i), 337-F(i), 337-L(ii) PPC are bailable, while sections 452 and 506/2 PPC do not fall within prohibitory clause of section 497 Cr.P.C and grant of bail in these cases is a rule and refusal is an exception, however, strong reasons for refusal are required. Reliance is placed on the case of Tariq Bashir v. The State (PLD 1995 SC 34) and Muhammad Tanveer V. The State and another (PLD 2017 SC 733). So far section 324 PPC is concerned, its applicability is to be considered by the trial court after recording evidence of the prosecution witnesses. It is settled principle of law that bail applications are to be decided tentatively and deeper appreciation of evidence is not permissible.

8. From the tentative assessment of the material available on record, I am of the view that the applicants have made out the case for confirmation of their pre-arrest bail, therefore, the interim pre-arrest bail already granted to them by this court vide order dated 10.09.2021, is hereby confirmed on same terms and conditions.

9. Observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial.

JUDGE

Suleman Khan/PA