IN THE HIGH COURT OF SINDH, CIRCUIT COURT HYDERABAD

Criminal Bail Application No. S- 569 of 2022

Applicant(s):                         Asghar Ali, Riaz Bilal, Muhammad Hassan, and Chakar Rind through Mr. Ghullamullah Chang, advocate.

Respondent:                          The State through Ms. Rameshan Oad, Asst. P.G.

Date of hearing:                    29.07.2022

Date of decision:                  01.08.2022

O R D E R

KHADIM HUSSAIN TUNIO, J- Through captioned criminal bail application, the applicants seek their admission to pre-arrest bail after being unsuccessful to get their admission on the same from the Court of learned Additional Sessions Judge-I/Model Criminal Trial Court Shaeed Benazir Abad in case bearing Crime No.05 of 2022 registered with Police Station Nasri, for the offences punishable u/s 429, 436, 440 and 34 PPC.

2.         Facts in brief as per the contents of the F.I.R are that on 17.04.2022 at about 1430 hours, the complainant Ali Bahar was available at his house along with his family members and had tied goats in a thatched shelter while he was grazing the other goats. He was allegedly approached by the applicants who were boarded on two motorcycles and got off and were identified by the complainant. Then, the applicant Riaz Bilal took a matchstick, lit it and threw it at the thatched shelter which set it on fire. The complainant shouted and raised cries which led the applicants to flee the scene on their motorcycles. The complainant found out that several items along with goat kids had also caught on fire. The complainant then approached the police station and lodged such FIR.

3.         Learned counsel for the applicants has contended that the applicants are innocent and have been falsely implicated in the FIR; that the complainant is inimical towards the applicants since long; that three other false FIRs have recently been lodged against the applicant party; that the motive for the alleged offence is unbelievable; that there is no independent evidence available against the applicants; that the FIR is delayed by one day for which no explanation is provided; that the complainant has failed to disclose specific roles for all the applicants.

4.         Learned APG for the State has opposed the grant of bail to the applicants.

5.         Heard and perused. A tentative perusal of the record shows that although the complainant has nominated all four of the present applicants, he has only assigned the specific role of throwing the matchstick to one applicant, that being applicant Riaz Bilal. There is a long standing enmity between the parties which is admitted and in this regard, several FIRs bearing Crime No.02 of 2022, 03 of 2022 and Crime No.04 of 2005 have been placed on record dating all the way back to the year 2005. It is also pertinent to note that the applicants have been acquitted in these cases vide judgments dated 20.02.2006, 07.11.2007 and 03.06.2008. Enmity is a double edged sword that cuts both ways and where on one end, it can furnish a motive for commission of an offence, at the same time it can be a reason to falsely implicate innocents as well. The applicant Riaz Bilal has been assigned the role of merely throwing a lit matchstick at the shack and as a result of wind, the fire spread. The bike which the complainant has allegedly lost to the fire has no particulars or documents to prove the ownership of the same. No ashes of the alleged lost property were recovered and the burnt CNIC card allegedly found has no mention of particulars. The pictures taken of the place of incident also do not show any damage besides to the thatched shelter. The weapon that the complainant claims to have lost to fire damage also has no particulars or license presented. Section 436 specifies the mischief resulting in the destruction of any ‘building’ used as a place of worship or as a human ‘dwelling’. A thatched shelter which is a makeshift arrangement, cannot be termed a building or house. In the “Concise Oxford English Dictionary”, the meaning of building is ascribed as ‘a structure with a roof and walls’ which suggests that a building is a permanent structure, however, the contents of F.I.R. do not disclose that the thatched shelter was ordinarily used as the place of residence or dwelling by the complainant. Reliance in this respect is placed on the case of Dilawar Hussain v The State and another (2011 PCr.LJ 420). Under similar circumstances, in the case reported as Bashir Ahmeed v The State (2009 YLR 2104), the learned Lahore High Court was pleased to grant bail to the applicant for allegedly setting a thatched structure on fire. It is pertinent to observe here that in non-bailable offences, it is not an absolute rule that the bail cannot be granted to an accused and if from the tentative assessment of record sufficient grounds for further inquiry into his guilt appear then the Court may extend concession of bail to an accused. The above view is fortified from a case reported as Liaquat Hussain v. The State and another (2015 PCr.LJ 1812), wherein the Hon'ble Supreme Court of Azad-Kashmir held as under:--

"It is not absolute rule that the bail in non-bailable offences cannot be granted to an accused. If from the tentative assessment of the material brought on record, it appears that there are reasonable grounds for believing that the accused has committed a non-bailable offence but the sufficient grounds for further inquiry into his guilt appear then the Court may release such accused on bail under Section 497, Cr.P.C. In the case falling under the prohibitory clause, the Court after tentative assessment of the evidence if comes to the conclusion that prima-facie some doubts are arising into the guilt of an accused, the Court is empowered to exercise its discretion in favour of the accused and may release him on bail. It is settled principle of law that the doubt if any arising in a case must be extended in favour of the accused even at bail stage."

6.         It is a settled principle of law that when ultimate conviction, if any, repairs the wrong caused by mistaken relief of bail, it would be rather harsh and even unjust to decline bail to an accused in a case entailing a sentence which may extend up to 10 years. In this regard, reliance is placed on the decision of the Hon'ble Supreme Court in case titled as Syed Khalid Hussain Shah v. The State and another (2014 SCMR 12). As far as the case of the other applicants is concerned, they have been assigned no other specific role besides just being present at the place of incident and boarding off the motorcycles.

7.         For what has been discussed above, the applicants have made out a case for grant of pre-arrest bail to them. As such, the earlier order dated 09.05.2022 granting ad-interim pre-arrest bail to the applicants is hereby confirmed on the same terms and conditions.

8.         Needless to mention here that whatever observed hereinabove is tentative in nature and shall not influence the mind of the trial Court while deciding the case on its merits.

JUDGE