IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Bail Application No.S-516 of 2022

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

1. For orders on O/objection at flag-A.

2. For hearing of bail application

Date of hearing 20.02.2023

Mr. Sikandar Ali Junejo, Advocate for applicant.

Mr. Touqeer Ahmed Domki, Advocate for complainant.

Syed Sardar Ali Shah,Addl. Prosecutor General, Sindh.

***************

O 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 under 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 main case.

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.

Bail application stands disposed of in the above terms.

J U D G E

Ihsan

are 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.

3. Learned 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.