IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-658 of 2021

Applicant: Nouman Ali Bhutto, through

M/s. Ali Gul Abbasi and Muhammad

Zohaib Azam, Advocates

Cr. Bail Application No.S-722 of 2021

Applicant: Irshad Ali, through

Mr. Ayaz Ali Noorani, Advocate

Complainant: Abdul Hafeez, through

Mr. Ajeebullah Junejo, Advocate

State: Through Shafi Muhammad Mahar

Deputy Prosecutor General.

Date of hearing: 13-12-2021

Date of Decision: 13-12-2021

O R D E R

ZULFIQAR ALI SANGI, J.- By this common order, I intend to dispose of captioned two bail applications arising out of same crime, filed by applicant Noman Ali son of Akhtiar Ali (Cr.B.A.No.S-658/2021), who is seeking his pre-arrest bail, while applicant Irshad Ali son of Muhammad Chuttal (Cr. B.A.No.S-722/2021) is seeking his post-arrest bail, in Crime No.127/2021, registered at Police Station Pano Akil, for the offences u/s 448, 506/2, 457/2, 504, 337-A(i), 337-L(i), 395, 342, 337-A(iii) and 337-H(i) PPC. Their earlier bail pleas were declined by the learned Additional Sessions Pano Akil, vide orders dated 04.10.2021, and 01.11.2021 respectively.

2. Concisely the facts of the prosecution case are that accused Noman Bhutto had occupied the otaq of complainant Abdul Hafeez and was pressurizing him to mutate the khata of the otaq in his favour. On 04.09.2021, complainant, his brother Shafiq-ur-Rehman, maternal cousin Muhammad Ali and other family members were sleeping in his house when at about 01.00 a.m night, accused Noman with pistol, Irshad with iron rod, Shamshad with pistol, Rizwan, Mehtab and Gulbahar with lathies entered into the house of complainant and accused Noman asked the complainant that since he is not mutating the khata of the otaq in his favour, therefore, they would not spare him today and saying so he caused butt blows of the pistol to complainant on his mouth and accused Irshad caused iron rod blow on his nose while other accused caused lathi blows to him and then accused Noman and Shamshad made aerial firing and dragged the complainant. Accused Rizwan robed mobile phone and cash Rs.3700/- and also asked the complainant to give the khata of otaq in writing on stamp paper but complainant refused. Thereafter all the accused confined the complainant in the otaq. In the meantime his brother Shafiqu-ur-Rehman and maternal cousin Muhammad Ali came who beseeched the accused in the name of Allah Almighty Allah as such they after issuing threats that if he would not mutate khata of the otaq within two days in their favour, they would commit his murder, went away. Thereafter witnesses brought the complainant to Police Station Pano Aqil, obtained letter for treatment went to Taluka hospital Pano Aqil where he remained under treatment and after obtaining final medical certificate complainant lodged such FIR.

3. Learned counsel for the applicant Noman has contended that the applicant has falsely been implicated by the complainant with some malafide intention and ulterior motives due to enmity which is admitted in the FIR. He next contended that there is delay of about 21 days in lodging of FIR, which has not been properly explained by the complainant as such false implication after due consultation cannot be ruled out. He has also contended that the applicant party has also lodged FIR against the complainant party of the same incident as such case of applicant requires further enquiry. Lastly he prayed for confirmation of interim pre-arrest bail already granted to the applicant.

4. Learned counsel for applicant Irshad Ali adopted the arguments advanced by learned counsel for applicant Noman and has further contended that the case has been challaned and applicant is no more required for investigation, who is behind the bars since his arrest for more than two months.

5. Learned DPG has opposed the bail pleas of applicants and has contended that the applicants are nominated in the FIR with specific role of causing injuries to the complainant and the offence falls within prohibitory clause of section 497 Cr.P.C. He prayed for recalling of interim pre-arrest bail already granted to applicant Noman Ali Bhutto, as well as dismissal of post-arrest bail of accused Irshad Ali.

6. I have considered the submissions of learned counsel for the parties and have gone through the material available on the record with their able assistance.

7. Admittedly, there is delay of about 21 days in registration of FIR, which has not been explained properly by the complainant. After the incident complainant party approached the police at Police Station, obtained the letter for treatment and thereafter went to hospital but no any even N.C was recorded nor there appears any evidence till the FIR was registered that who caused the injuries to the injured and how the incident took place. However, on 25.09.2021, first time complainant disclosed about the happening of incident, which brought the case within the parameter of further enquiry.

8. The enmity is admitted by the complainant in the F.I.R and the same is double-edged weapon which cuts both the sides. These facts and circumstances are sufficient to bring the case within the ambit of further enquiry. Further the offence for which the applicants are charged is punishable up-to 10 years which starts from 0 to 10 and is on the discretion of the trial court, who on the basis of evidence may exercise such discretion, hence does not fall within the prohibitory clause of Section 497(2) Cr.P.C, except section 457/2 PPC which shall be determined at the trial after recording evidence. The grant of bail in cases covered under the said provision is rule and refusal is an exception. Deeper appreciation of evidence is not permissible under the law while deciding the bail matters and tentative assessment is required to be made.

9. From the tentative assessment of material available on record, it appears that the applicants have made out their good case for grant of pre-arrest and post-arrest bail. Resultantly, the interim pre-arrest bail already granted to the applicant / accused Noman Ali by this court vide orders dated 01.10.2021, is hereby confirmed on same terms and conditions. While applicant Irshad Ali is admitted to post-arrest bail subject to furnishing his solvent surety in the sum of Rs.50,000/- (rupees fifty thousand) and PR bond in the like amount to the satisfaction of the trial court.

10. The observations made hereinabove are tentative in nature only for the purpose of deciding the instant bail applications, which shall not, in any manner, influence the learned Trial Court at the time of final decision of the subject case.

11. Office is directed to place a signed copy of this order in the captioned connected bail application.

JUDGE

Suleman Khan/PA