IN THE HIGH
COURT OF SINDH BENCH AT SUKKUR
Crl. Bail Application No.S-516 of 2022
SIGNATURE OF JUDGE
1. For orders on
O/objection at flag-A.
2. For hearing of
of hearing 20.02.2023
Ali Junejo, Advocate for applicant.
Ahmed Domki, Advocate for complainant.
Ali Shah,Addl. Prosecutor General, Sindh.
R D E R
ABDUL MOBEEN LAKHO, J; Through this bail application, applicant Safdar
Ali son of Sikandar Ali Noonari, seeks his admission on pre-arrest
bail in Crime No.97 of 2022 Police Station, Airport Sukkur district Sukkur
Sections 382, 457, 506/2, 34 PPC. The bail plea
preferred by the applicant was declined by Additional Sessions Judge-IV/(Hudood), Sukkur vide order dated 08.10. 2022 hence,
this bail application.
2. The facts of the
prosecution case in nutshell are that complainant lodged FIR at Police Station,
Airport Sukkur stating therein that on 08.08.2022 at 4:00 a.m. present applicant
Safdar Ali Noonari, armed with Kalashnikov alongwith three unknown armed
accused trespassed in complainant’s house and committed theft of cash of
Rs.400,000/- golden ornaments weighing 14 Tolas, valuable documents, weapons
and cell phones etc. on pointation of weapons. The complainant thereafter lodged
instant FIR to the above effect.
3. Counsel for
applicant contends that applicant is
innocent and has falsely been implicated in the present case there is delay of
about two months in lodging the FIR for which no plausible explanation has been
furnished; that applicant is serving
in Police department and on the day of incident he was on Muharram duty; that complainant approached SSP moved an application
dated 18.08.2022 whereby he did not disclose the name of present applicant. Lastly, he submits that present
applicant and complainant are related inter
se and the offence does not fall within the prohibitory clause of Section
497 Cr.P.C, therefore, he prayed for confirmation of bail.
4. Mr. Touqeer Ahmed Domki, Advocate contends that delay has properly been
explained by the complainant in FIR; that applicant is Police official
and is influential person and is criminal minded person; that
complainant approached to the learned Justice of Peace and after getting
directions lodged FIR hence he has fully explained the delay of FIR; that offence falls within the
prohibitory clause of Section 497(1) Cr.P.C. He prayed for dismissal
of pre-arrest bail.
5. Learned Additional Prosecutor General appearing for the State adopted
the same arguments as advanced by Counsel for complainant however, he half
heartedly opposed for confirmation of bail in addition that it is for the
learned trial Court to determine after recording evidence whether applicant is guilty of the offence or not.
6. Heard arguments of learned Counsel for the parties and perused
the material available on record.
Admittedly, the incident has taken place on 08.08.2022 at 0400 hours but the report was lodged on 04.10.2022 at 1210 hours after about two months of
the incident but no plausible explanation for such delay in FIR has been given
by the complainant. The altercation took place between the parties over
property. The allegations against the applicant that he has theft the
articles; however, according to counsel for applicant the applicant and
complainant are related inter se and it is for the learned trial
Court to determine after recording evidence pro
and contra, whether the applicant is guilty of the offence or not. No evidence against
accused while committing theft in the house has come
on record and no recovery whatsoever has been effected from the applicant. The offence with which accused
is charged do not fall within the
ambit of Section 497(2) Cr.P.C hence matter requires further inquiry. The applicant is regularly attending this Court
as well as learned trial Court and there is no allegation of misusing the
concession of bail against him. The interim pre-arrest bail
already granted to the applicant vide order dated 11.10.2022 is hereby confirmed subject
to his furnishing additional surety of Rs.1,00,000/- with fresh PR bond to the
satisfaction of Additional Registrar of this Court within two weeks’ hereof. However, in case applicant fails
to furnish additional surety within stipulated period, this Crl. Bail
Application shall stands dismissed by recalling interim order dated 11.10.2022. The applicant present is
directed to continue his appearance before trial Court, till final decision of
7. Needless to mention here that observation made herein above
are tentative in nature and trial Court may not be influenced of the same and
decide the case on its own merits as per evidence and the material made
available before it.
application stands disposed of in the above terms.
U D G E
not attracting the facts of the case as complainant for the purpose of
verifying the weighing did not use any instrument though the weighing
instrument were kept at weighbridge to inspect and verify such weight but
complainant has failed to do so.
4. On the
other hand learned Additional Prosecutor General appearing for the State submits
that offence with which applicant stands charged does not fall within the ambit
of prohibitory clause of section 497 Cr.P.C therefore, extended no objection in
view of dicta laid down in the case of Asad Ali v. The State reported in 2017 P.Cr.LJ Note 118.
Counsel contends that the allegation against the applicant along with his
other companions trespassed into the house of complainant caused butt blow
injuries to PW Naeem Ahmed. He submits that offence with which applicant stands
charged does not fall within the ambit of Sub-Section (i) of Section 497
Cr.P.C. Next submits that after furnishing surety before this Court applicant
has been appearing before the trial Court without any negligence or omission
hence, pray for confirmation of bail.