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