ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-386 of 2022

 

 

 

Applicants:                            Imdad Ali @ Mendhro and others, through

                                              Mr. Ghulam Rasool Chandio, Advocate

 

Complainant:                        Inayatullah, through

                                              Mr. Humail Rafi Mahesar, Advocate

 

  

State:                                     Through Imran Mobeen Khan,

                                              Assistant Prosecutor General

                                      

Date of hearing:                     10.10.2022

 

Dated of order:                      10.10.2022

                                                 

O R D E R

 

Shamsuddin Abbasi, J:    Applicants / accused Imdad Ali @ Mendhro, Muhammad Siddique @ Siddique, Mehar Ali and Mir Hassan seek their pre-arrest bail in FIR No.38/2022, registered at Police Station Sorah, District Khairpur, for offences punishable under sections 324, 147, 148, and 149 PPC, after rejection of their bail by learned trial court, vide order dated 02.08.2022. 

2.                Brief facts of the case are that on 02.05.2022 at 9.15 a.m, present applicants along with their companions duly armed with cleavers, hatchets and lathies came at the shop of complainant, attacked upon the complainant party and caused injuries to complainant Inayatullah and his brother Hidayatullah.

 3.               Learned counsel for the applicants contends that the applicants are innocent and they have been falsely implicated in this case due to malafide intention and ulterior motive; that there is delay of one day in lodgment of FIR and no plausible explanation has been furnished for such delay; that there is inconsistency in medical evidence and ocular version; that during investigation applicants were found innocent and they have been released by the I.O but learned concerned Magistrate did not agree with the opinion of I.O and joined them in the trial; that case has been challaned and applicants are no more required for further investigation. He finally prayed for confirmation of interim pre-arrest bail already granted to applicants.

4.                On the other hand, learned Assistant Prosecutor General, assisted by learned counsel for the complainant contends that the applicants are nominated in the FIR with specific role of causing injuries to injured Hidayatullah and complainant Inayatullah, however he has admitted the facts that no role has been assigned to applicant Mir Hassan but he has shared common object and liable for same punishment. He further submits that applicants are not entitled for extra ordinary relief in shape of pre-arrest bail; that applicants have failed to make out their case on the point of malafide on the part of complainant to falsely implicate them in the present case.

 

5.               Heard learned counsel for the applicants, learned counsel for the complainant as well as learned Assistant Prosecutor General and perused the material available on record.

 6.              Though there is delay of one day in lodgment of FIR but it has been properly explained by complainant by stating that soon after the incident he shifted the injured Hidayatullah, who was unconscious due to injuries sustained by him, to hospital and when his condition was stabled, he approached to Police Station and lodged FIR of the incident. Even bail cannot be granted merely on the ground of delay in lodging of FIR. Contention raised by learned counsel for the applicants that applicants Muhammad Siddique, Mehar Ali and Mir Hassan were found innocent during investigation and their names have been placed in column-II, of the challan-sheet but learned Magistrate did not agree with the opinion of the I.O and joined them in the trial. It is well settled preposition of law that opinion of police is not binding on courts and in the present case learned concerned Magistrate has taken cognizance and joined them and applicants have not challenged the order of joining before any forum. It is alleged in the FIR that applicant Imdad @ Mendhro caused cleaver injury to Hidayatullah on his head and applicant Siddique caused cleaver injury to him on left ear and temporal region. As far role of Mehar Ali is concerned, he also caused cleaver injury to complainant on right side of temporal region. The ocular version is corroborated by medical evidence. During investigation PWs have supported the case of complainant. Moreover, learned trial court has also declined post-arrest bail to co-accused Janib, who is assigned same role as role of present applicants. Injuries sustained by both the injured are on head and face which are vital parts of the body.  Moreover, section 324 PPC is applied in the present case, which makes the case falling under the prohibitory clause of section 497 Cr.P.C. The Hon’ble Apex Court has provided guidelines in pre-arrest bail cases on the point of malafide, which is pre-requisite condition for grant of pre-arrest bail and applicants have failed to make out a case on this aspect of the case. The Hon’ble Apex Court has refused to grant of bail in a case reported as Mukhtar Ahmed v/s The State and others (2016 SCMR 2064). The Hon’ble Apex Court has also declined the bail in cases falling under section 324 PPC reported as Sheqab Muhammad v/s The State and others (2020 SCMR 1486)  and Haji Shah Behram v/s The State & others (2021 SCMR 1983).

7.                In view of dictum laid down by the Hon’ble Apex Court as well as on merits, the interim pre-arrest bail granted to the applicants vide order dated 12.08.2022 is hereby recalled. Applicants/accused are directed to surrender before the learned trial court. However, expeditious trial is a right of accused, therefore, learned trial Court is directed to conclude trial preferably within six months. It is made clear that above observations are tentative in nature and would not prejudice case of the either party at trial.

 

 

 

 

J U D G E

 

 

 

 

 

Suleman Khan/PA