ORDER-SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. S- 255 of 2023.
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Date of hearing |
Order with signature of Judge |
05.06.2023.
1. For orders on office objections.
2. For hearing of bail application.
Mr. Mumtaz Ali Brohi, Advocate for applicant.
Mr. Nazir Ahmed Bangwar, Assistant Prosecutor General.
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Khadim Hussain Soomro, J-. Through this application, applicant Muhammad Yousif son of Ghulam Hyder Jakhrani has sought for grant of post arrest bail, in F.I.R No.28/2023, registered with P.S City Jacobabad, for offences punishable under Sections 419, 143, 117 P.P.C. His similar request was turned down by learned Additional Sessions Judge-I, Jacobabad, vide Order dated 04.05.2023.
2. Briefly, the case of the prosecution is that complainant H.C Ghulam Ali lodged the above F.I.R at P.S City Jacobabad on behalf of the State, alleging therein that on a fateful day, he along with other staff left police station vide roznamcha entry No.26, dated 04.04.2023, left the P.S, for patrolling within their jurisdiction. They received spy information that one video was being viral on Facebook, wherein the applicant/ accused conducted a “Jirga” and imposed a fine upon Dilawar and Muhammad Ali Brohi amounting to Rs.50 lacs. The police party recorded such viral video on USB and after that lodged the F.I.R.
3. At the very outset, learned counsel for the applicant mainly contended that co-accused Changez Khan, Fahad Ali Khan, Azeem Khan and Hashmat Khan have already been granted pre-arrest bail by this Court vide Order dated 11.5.2023 passed in Crl. Bail Appln. No. S- 198/2023, and the role of the present applicant is identical to the role of the accused who have already been granted pre-arrest bail; therefore, on the basis of the rule of consistency the applicant also deserves the same concession and treatment. Learned counsel further added that there is a delay of two days in lodging the F.I.R, that there is no independent witness of the incident, and the applicant has been falsely implicated in this case by the police.
4. Learned A.P.G. appearing for the State opposed the grant of bail to the applicant on the grounds that the applicant has been nominated in the F.I.R with a specific role that he was present at the time of conducting a ”Jirga” and he has actively participated in the commission of the alleged offence. He further contended that though the alleged offence does not fall within the prohibitory clause of Section 497 Cr. P.C, it is not a rule to grant bail to an accused person in every case which does not fall within the prohibitory clause.
5. Heard learned counsel for the applicant as well as learned A.P.G. and perused the record.
6. The case of the prosecution is that applicant, along with the co-accused, conducted a “Jirga” by way of impersonation and acted as an advocate etc., and such video was viral on Facebook, and police recorded such video on USB. The USB was not sent to the forensic expert for its genuineness or otherwise. The offence, as alleged by the prosecution, does not fall within the prohibitory clause of Section 497 Cr. P.C and in such types of cases, grant of bail is the rule, and refusal is an exception; however, there appear to be no exceptional circumstances for refusal of bail in the instant case. Reference in this regard can be made to cases reported in MUHAMMAD TANVEER v/s The STATE PLD 2017 SC page No 733; paragraph No. 11 and 12 are relevant, which are reproduced as under:
11 “Once this Court has held in categorical terms that grant of bail in offences not falling within the prohibitory limb of section 497, Cr.P.C. shall be a rule and refusal shall be an exception then, the Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding on all Courts throughout the country including the Special Tribunals and Special Courts”
12 “Today every prison is accommodating convicted and under-trial prisoners more than double of its capacity and allied facilities besides the State authorities are involved on daily basis in transporting such under-trial prisoners from the prisons to the Court premises on every date of hearing, involving risk and extra expenditures from the public exchequer while on the other hand the dependent family members, especially the school going children of the under-trial prisoners charged for such offences are left without proper care and supervision of the father or mother when their parents are sent to jail, therefore, their academic career is always at stake and they are tempted and persuaded to indulge in unsocial or anti-social activities ultimately landing them in the field of crimes, which is not good for the society at large”
7. In bailable offences, the granting of bail is unquestionably a right and not a favour, whereas in non-bailable offences, the granting of bail is not a right but a concession/grace. Section 497 of the Criminal Procedure Code divided non-bailable offences into two categories: (i) offences punishable by death, life imprisonment, or ten-year imprisonment; and (ii) offences punishable by imprisonment for more than ten years. The principle derived from this provision of the law is that for non-bailable offences in the second category (punishable by imprisonment for less than ten years), bail is the rule and refusal is the exception. Therefore, only in extraordinary and exceptional cases will bail be denied. There is no extraordinary circumstance of the present case. In this context I have sought the guidance from the case of TARIQ BASHIR and 5 others V/S THE STATE PLD 1995 SC Page No 34, paragraph No. 2 of the judgment is reproduced as under:
“It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for fuss than .ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is 'a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases”
8. Moreover, co-accused Changez Khan, Fahad Ali Khan, Azeem Khan and Hashmat Khan have already been granted pre-arrest bail by this Court vide Order dated 11.5.2023 passed in Crl. Bail Appln. No. S- 198/2023, and the role of the present applicant is identical to these co-accused; as such, he also deserves the same treatment and concession on the principle of the rule of consistency.
9. In view of above and the dicta laid down in the cases (supra), the instant bail application stands allowed and applicant Muhammad Yousif is granted post-arrest bail upon his furnishing solvent surety in the sum of Rs.30,000/- (Thirty thousand rupees) and P.R bond in the like amount to the satisfaction of trial Court.
Judge
Ansari