ORDER SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANO
1st. Cr. Bail Application No. S- 544 of 2023
Applicant(s): Saeed Ahmed and Amir Ali through Messrs Nadeem Ahmed Qureshi and Zeeshan Ali Memon, Advocates.
The State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Complainant: Kashif Ali through Mr. Wajid Ali Khokhar, Advocate.
Date of hearing: 07.12.2023
Date of order: 07.12.2023
ORDER
Muhammad Saleem Jessar-J. Through this bail application, the applicants have prayed for their admission on pre-arrest bail in crime No.25/2023, registered at Police Station Gerello, for offence under sections 337F-v, 337-A-ii,A-i, F-i, 506/2, 34 PPC. Prior to this, bail application No.1361/2023, was filed by the applicants before the Court of Sessions Judge, Larkana which subsequently was assigned to V-Additional Sessions Judge, Larkana where after hearing the parties same was dismissed vide order 11.09.2023, hence; this bail application has been maintained.
2. The facts of the case are mentioned in FIR, copy whereof has been attached with the memo of bail application, hence need not to be reproduced here again.
3. Learned counsels for the applicants submit that F.I.R is delayed for about three months and no plausible explanation has been furnished by the prosecution for such an inordinate delay. Besides, the parties are already on strange relations with each other over property in dispute. He next submits that case has been challaned and the applicants are no more required by the police for investigation or for interrogation, and; no complaint for misuse of concession extended to them has been brought on record. They further submit that injury allegedly attributed to applicants carries maximum punishment of five years therefore, case against them requires further inquiry.
4. Learned Additional Prosecutor General, Sindh submits that though medico legal certificate was issued by the MLO on 10.6.2023 even then FIR was lodged on 31.8.2023 besides the offence with which the applicants have been charged carries maximum punishment for five years. Hence, he has no objection for grant of bail application.
5. Learned counsel for the complainant vehemently opposes the bail application on the ground that the applicants have been assigned specific role of causing Danda (heavy wooden stick) blows to complainant therefore, they are not entitled for the concession of pre-arrest bail. He further submits that no malafide has been shown which is basic ingredient for grant of pre-arrest bail hence applicants are not entitled for grant of bail. In support of his contentions he places reliance on the cases of Lakhadino alias Lakhoo v. The State (2018 P.Cr.L J Note-54) and Nasir and three others v. The State and another (2018 P.Cr.LJ 487[Lahore].
6. Heard arguments. Perused record.
7. Admittedly the incident had occurred on 7.6.2023 and injured allegedly was referred to the nearest hospital where after providing first aid treatment to him the Medico Legal Officer had issued medico legal certificate in his favour on 10.6.2023 even then he appeared at Police Station on 31.8.2023 when instant case was registered. The delay of two months and 23 days in lodgment of FIR has not been explained by the prosecution besides the parties as admitted are already entangled with each other over civil as well criminal litigation. No doubt the applicants are nominated in F.I.R with specific role of causing danda (heavy wooden stick) blow to complainant yet both the injuries allegedly sustained by injured have been declared by the Medico Legal Officer to be punishable under section 337-A-II and F-v PPC which carries maximum punishment of five years only. The case is being tried by the court of Civil Judge/Judicial Magistrate, in such eventuality, if, prosecution may succeed to prove its charge against them even then punishment of more than three years cannot be visualized. In case of Manzoor Ali alias Mumtaz v. The State (2001 P.Cr.L.J-344) learned bench of this Court while granting post arrest bail to said accused has held in following terms:-
“Although name of the applicant appears in the F.I.R. but the same was lodged after great delay of more than 34 hours. The F.I.R. of a criminal case mentioning the name of the accused, if not found to be promptly lodged shall not have much sanctity. The case is pending trial before a Magistrate and in such event the sentence for more than three years cannot be visualized. In view of PLD 1995 SC 34, the applicant is allowed bail subject to his furnishing a solvent surety in the sum of Rs.50,000/-( fifty thousand) and P.R. Bond in the like amount to the satisfaction of the trial court.
8. In the circumstances and in view of the dicta laid down by the Apex courts in the case of Muhammad Tanveer versus The State and another (PLD 2017 SC-733), wherein Hon'ble Supreme Court of Pakistan has held as under:-
"In cases of this nature, not falling within the prohibition contained in section 497, Cr.P.C., invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions."
9. The case against the applicants requires further inquiry within the meaning of subsection 2 of section 497 Cr.PC. Accordingly instant bail application is hereby allowed. The interim pre arrest bail already granted to the applicants vide order dated 26.9.2023 is hereby confirmed on same terms and conditions.
J U D G E
S-Ashfaq/-