ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail Appln. No. S-22 of 2023
Applicant: Asad @ Asadullah Magsi,
Through Mr. Ghulam Ali Abbasi, Advocate
The State Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
The complainant: Fahad Ali Surhio (In person)
Date of hearing: 10-02-2023
Date of order: 10-02-2023
ZULFIQAR ALI SANGI, J.- Through instant criminal bail application, the applicant/accused Asad @ Asadullah Magsi seeks confirmation of interim pre-arrest-bail in Crime No.01/2023, registered at Police Station Market, Larkana, for the offence U/S 337-A(ii), F(ii), 148, 149, 506/2, 504 P.P.C, after rejection of his bail plea by the learned III-Additional Sessions Judge, Larkana, vide order dated 16.01.2023.
2. The facts of the incident are mentioned in the bail application and the copy of F.I.R. is also attached with the bail application, hence, needs not to reproduce the same here.
3. It is contended by the learned counsel for the applicant that the applicant/accused is innocent and has falsely been implicated in this case by the complainant with malafide intention and ulterior motives; that there is delay of one day in lodging the FIR for which no plausible explanation has been furnished by the complainant, hence deliberation, consultation and false implication cannot be ruled out; that the applicant/accused had never issued threats to the complainant party as such question would be determined at the time of trial whether the applicant/accused extended threats to the complainant party or not, hence false implication of applicant under section 506/2 PPC cannot be ruled out. Learned counsel further submits that as per F.I.R the alleged incident is said to be taken place on 30.01.2023 at 07.30 p.m, whereas, it is surprising that in provisional Medical Certificate, issued by the Medical Officer on 03.01.2023, in which time of arrival of injured complainant is shown as 03-30 p.m of the said date i.e. 03.01.2023, which creates serious doubt in the case of prosecution. He further submits that all the prosecution witnesses are closely related to each other, therefore, they are interested; that the case of applicants required further enquiry, therefore, the same falls within the provision of Section 497(2) Cr.P.C; that the applicant is not previously convicted nor hardened criminal and neither he will tamper with the prosecution nor he will abscond away and will join the trial. He, therefore, requests for confirmation of interim pre-arrest bail already granted to the applicant/accused.
4. Learned D.P.G. submits that the applicant/accused along with co-accused has made assault upon the complainant party and caused the injury to the complainant at head as well as extended murderous threats to the complainant, therefore, he is not entitled for grant of pre-arrest bail. He has opposed for confirmation of pre-arrest bail to the applicant/accused.
5. Heard learned counsel for the applicant, learned Additional Prosecutor General and complainant in person and perused the material available on the record.
6. Perusal of F.I.R shows that though the name of applicant/accused transpired in the F.I.R but further perusal of F.I.R reveals that the alleged incident is said to be taken place on 03.01.2023 at 07.30 p.m, whereas, it is surprising to see that in provisional Medical Certificate, issued by the Medical Officer on 03.01.2023, in which time of arrival of injured complainant is shown as 03-30 p.m of the said date i.e. 03.01.2023, which creates serious doubt in the case of prosecution in its happening.
7. The offence for which the applicant is involved carries punishment upto five years and the same does not fall within the prohibitory clause of Section 497 Cr.P.C. and grant of bail in such cases is rule while refusal is an exception as has been held by Honourable Supreme Court of Pakistan in cases of Tarique Bashir V. State (PLD 1995 SC 34), Zafar Iqbal V. Muhammad Anwar (2009 SCMR 1488), Muhammad Tanveer V. State (PLD 2017 SC 733) and Shaikh Abdul Raheem V. The State etc. (2021 SCMR 822). Further, the Honourable Supreme Court in case of Muhammad Imran V. The State (PLD 2021 SC-903) has formulated the grounds for the case to fall within the exception meriting denial of bail as :
(a) the likelihood of the petitioner’s abscondence to escape trial;
(b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or
(c) his repeating the offence keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offence alleged.
8. Further, Honourable Supreme Court in the said order held that the prosecution has to show if the case of the applicant falls within any of these exceptions on the basis of the material available on the record. In the case in hand, the prosecution has failed to establish any of the above ground meriting denial of the application of the applicant. It is also settled by the Honourable Apex Court that deeper appreciation of the evidence is not permissible while deciding the bail application and the same is to be decided tentatively on the basis of material available on the record.
9. In view of above, it appears that the applicant/accused has made out a case for confirmation of interim pre-arrest bail in view of subsection (2) of Section 497 Cr.P.C. Accordingly, instant criminal bail application is allowed. Interim pre-arrest bail already granted to the applicant/accused vide order dated 19.01.2023 is hereby confirmed on same terms and conditions.
10. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial court while deciding the case of either party at trial.
J U D G E
Abdul Salam/P.A