IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Bail Application No.S-731 of 2021
Applicants: Irfan Ali and another,
through
Mr.
Azizullah Pathan, Advocate
Cr. Bail Application No.S-692 of 2021
Applicants: Mazhar Hussain and another, through
Mr.
Tofique Hussain Nonari,
Advocate
Complainant: Nemo
State: Through
Syed Sardar Ali Shah Rizvi,
Deputy
Prosecutor General
Date of
hearing: 17.01.2022
Dated of
order: 17.01.2022
O R D E R
Zulfiqar
Ali Sangi, J:
Through instant applications,
applicants/ accused Irfan Ali and Fareed both sons of
Ali Gohar Shaikh and Mazhar Hussain and Inayat Ali both sons of Allah Bux
Shaikh, are seeking their pre-arrest bail in FIR No.186/2020,
registered at Police Station Shaheed Murtaza Mirani District Khairpur, under sections 324, 148 and 149 PPC. Earlier their pre-arrest bail applications
were declined by learned Additional Sessions Judge-II, Khairpur
vide orders dated 01.11.2021, 14.04.2021 and 02.08.2021 respectively.
2. As per allegations in the FIR the applicants/accused have
caused injuries to complainant Rashid, PWs Niaz
Hussain, Mst.Anwar, and Mst. Fahmeeda.
3. Learned
counsel for the applicants submit that there is delay of one day in the
registration of FIR and the same has not been properly explained by the
complainant; that prior to registration of present FIR the applicants/accused
party had lodged FIR No.185/2020 regarding murder of father of co-accused Ali Gohar in which complainant of present FIR is also accused;
that the complainant has concealed the facts of incident and has given false facts
in order to falsely implicate the present applicants; that as per medical certificates the injuries received by
the injured persons are punishable up to 05 years, which do not fall within the
prohibitory clause of section 497 Cr.P.C; that section 324 PPC is not
applicable in the present case and its applicability will be determined by the
trial court after recording evidence of the prosecution witnesses. Lastly, they
prayed that interim pre-arrest bail granted to the applicants may be confirmed.
4. Learned
DPG appearing for the State in view of
above submissions of learned counsel for the applicants has conceded for
confirmation of bail while relying upon the case law reported in 2021 MLD 2016
and 2021 SCMR 1909.
5. I
have heard learned counsel for the parties and have gone through the material
available on record with their able assistance.
6. Admittedly
there is delay of one day in registration of FIR which has not been properly
explained by the complainant. Further, there are counter cases in between the
parties and enmity is admitted. Besides, the injuries caused to the injured
persons as per medical evidence are punishable up to 05 years and does not fall within the prohibitory clause of Section
497(2) Cr.P.C, while application of section 324 PPC shall be determined by the
trial court after recording evidence. The grant of bail in such cases which do
not fall within prohibitory clause of section 497 Cr.P.C is a 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).
7. The deeper appreciation of evidence is not permissible at
the stage of bail and the same is to be decided tentatively. From the tentative
assessment of material available on record the applicants have make out their
case for confirmation of pre-arrest bail. Accordingly, instant bail
applications are allowed and ad-interim pre-arrest bail earlier granted to the
applicants vide orders dated 10.11.2021 and 22-10-2021 are hereby confirmed on
the same terms and conditions.
8. 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.
9. The
above bail applications are disposed of in the above terms.
Office
is directed to place a signed copy of this order in the captioned connected bail
application.
JUDGE
Suleman Khan/PA