ORDER SHEET.
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Cr. B. A. No: 841/2009
For hearing
Mr. Ahmed Ali Memon along with applicant.
Mr. Zulfiqar Ali Jatoi, DPG.
*****
This pre-arrest bail application has been filed against the order of the 1st Additional Sessions Judge, Ghotki, dated 04-09-2009 in B.A No: 1336/2009 relating to Crime No: 114/2009, registered with P.S: Sarhad, District Ghotki for offences U/S: 337-A (ii), 337-F (i), 504, PPC.
The brief facts of the case as per FIR are that the complainant was attacked by the applicant and his companions who were armed with Sotis whereas the present applicant had been alleged to have inflicted Soti blow on his right side whereas the other co-accused were alleged to have inflicted Soti blows on his calf. Against the above FIR, the applicant had filed pre-arrest bail application before the learned Additional Sessions Judge and was granted interim pre-arrest bail but the same was not confirmed by the impugned order, hence this bail application.
I have heard Mr. Ahmed Ali Memon, the learned counsel for applicant and Mr. Zulfiqar Ali Jatoi, the learned DPG.
The main contention of
the learned counsel is that the applicant has also filed a counter FIR for an
incident alleged to have occurred on the same day at 08-00 p.m. wherein he and
his companions were held up by the respondents and his companions and were
robbed Rs. 35,000/- on the force of arms. He further submits that the FIR No:
138/2009 of P.S: Sarhad has been filed with delay as due to malafide motive,
the Police did not register the FIR and he had to apply to the Sessions
Judge/Justice of Peace and the FIR was registered only after he issued
directives to the Police officials to register the FIR. The learned counsel
further submits that the order of the 1st Additional Sessions Judge,
Ghotki is self contradictory as he has refused bail to the applicant because of
the allegation of his specific role in the FIR but has at the same time
submitted that since the other co-accused also belongs to one and the same
family, therefore, in such cases, false implication of the accused cannot be
ruled out. He stated that all the alleged offences are bailable and do not fall
within the exception to Section 497, Cr.P.C. He, therefore, prayed that the
pre-arrest bail granted on
The learned DPG strongly opposed to the grant of bail and supported the order of the Additional Sessions Judge. He submits that as far as the FIR filed by the present applicant is concerned, challan has still not been filed in respect of such FIR and the Police may recommend for disposing it of in false class. He further submitted that specific role of inflicting Soti blow on the head of the complainant has been alleged and in view of such allegation, no further inquiry is needed to connect the applicant with the Crime. He, therefore, prayed that the pre-arrest bail granted earlier may not be confirmed and the applicant may be handed over to judicial custody.
I have examined the case
in the light of the arguments of the learned counsel and have perused the
record of the case including the FIR. The Superior Courts have been unanimous
in the view that grant of bail in bailable offences is rule and refusal of bail
is an exception. Even on the basis of the Judgment of Honourable Supreme Court
in the case of Rana Mohammad Arshad versus Mohammad Rafique and another
reported in 2009 PLD SC 427 which though not directly relied on by the learned
Additional Sessions Judge has been impliedly relied on but the applicant does
not become disentitle to pre-arrest bail, as he has been able to create a
reasonable apprehension that the FIR has been filed with malafide intent. I am,
therefore, of the considered view that the applicant is entitled to pre-arrest
bail, and therefore, I confirm pre-arrest bail already granted by this Court,
vide its order dated
The applicant is directed to co-operate with the trial Court and also with the investigation agency and in case of failure to extend such co-operation, this concession of bail may be withdrawn.
Judge
Rashid