THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail No.S-184of 2024
Applicant: Muhammad Ali, son of Abdul Khalique through Mr. Abdul Rauf Memon, Advocate.
Complainant: Mst. Sughran, Wife of Ali Murad through for Mr. Farooq Ahmed Gaad, Advocate.
Respondent: The State
Through Mr Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.
Date of hearing: 15.08.2024
Date of Order: 15.08.2024
O R D E R
KHADIM HUSSAIN SOOMRO, J.-Through instant Criminal Bail Application, applicant/accused Muhammad Ali, son of Abdul Khalique, seeks pre-arrest bail in Crime No. 34/2024, offence under Sections 337-A(i)(iii), 337-F(i)(v), 337-L(ii), 504, 147, 149 P.P.C. of the Police Station A-Section Thull. Prior to this, he filed such an application, but the same was dismissed by the Court of Additional Sessions Judge, Thull vide Order dated 27.03.2024; hence, he filed an instant Criminal Bail Application.
2. The facts, in a nutshell, are that there was a dispute going on between the parties on the allegation of Karo-Kari and on 03.03.2024, the Complainant, alongwith her son Mansab and nephew Ghulam Rabbani, were going back to their village, Sahib Dino Soomro from the city (Thull) after finishing usual work, when they reached Bolaki Laro, K.Kot road at about 06:00 p.m., they noticed five persons on two motorcycles, who were identified to be Muhammad Ali, Abdul Malik both sons of Abdul Khalique, Hamadullah son of Kamal Din, Ahsan Ali son of Abdul Qadir and Aftab Ahmed son of Habibullah all by caste Soomro duly armed with lathies, stopped their rickshaw and started abusing complainant party and threatened them if they will not give faisla of Karo Kari they will teach them lesson. By saying so, accused Muhammad Ali caused a lathi blow to Mansab on his head, Aftab caused a lathi blow to Mansab on his wrist of right hand, accused Hamadullah caused a lathi blow to Mansab on his right leg, accused Abdul Malik caused a lathi blow to Mansab on his right side of face and accused Ahsan caused lathi blow to Mansab on his back. The complainant party raised cries, and then all the accused fled away, thereafter, after getting the letter from the Police Station, they rushed again to the Police Station with a certificate and lodged instant F.I.R.
3. Learned counsel submits that the Applicant/accused is innocent, and he has been falsely implicated in this case by the Complainant with mala fide intention and ulterior motives; that there is a delay of one month in lodgment of the F.I.R. and the Complainant has not plausibly explained such delay; that the Applicant/accused is serving in Revenue Department and at the time of occurrence of incident, he was present in the office of the Assistant Commissioner, Thull hence plea of alibi is very much attracted in the present case. He lastly argued that the Applicant / accused is entitled to the concession of bail; hence, the interim pre-arrest bail earlier granted to him vide Order dated 02.04.2024 may be confirmed on the same terms and conditions. In support of his contentions, he relied upon the case law reported as 2016 SCMR 18.
4. On the other hand, the learned counsel for the Complainant as well as the learned Deputy Prosecutor General, Sindh,opposed the grant of bail to the Applicant/accused on the ground that the applicant has been nominated in the F.I.R. with a specific role of causing lathi blow to the son of the Complainant namely Mansab on his head, which is a vital part of the body and carries punishment of 10 years; that due to such head injury the son of the Complainant is still under treatment and is not fully conscious; that the plea of alibi taken by the counsel for the applicant could not be considered at bail stage and would be determined by the trial Court after recording pro and contra evidence of the witnesses. In support of his contentions, learned counsel for the Complainant has relied upon the case law reported as 2020 Y.L.R. 1930 (Muhammad Arif and another v/s. The State and another) and submits that the interimpre-arrest bail granted to the applicant may be recalled.
5. I have heard arguments from the learned counsel for the parties and have perused the material available on record with their assistance and the case law relied upon.
6. Admittedly, the Applicant / accused is nominated in the F.I.R with a specific role of causing lathi injury to the son of the Complainant on his head, which is a vital part of the body. The injury is declared to be Shajjah-i-hashimahfalls under section 337-A(iii) P.P.C and carry a punishment of ten years. The eyewitnesses have recorded their 161 Cr.P.C statements, which fully implicates the applicant/accused with the commission of an offence. The ocular version of the witnesses is supported by medical evidence. The defence counsel also failed to point out any ill will either on the part of the Complainant or the investigating officer to implicate the applicant accused in the offence. Sole on the grounds of delay in the registration of F.I.R., bail cannot be granted.
7. The applicant has raised the plea of alibi by saying that he was not available at the relevant time at the place of the incident, but he was busy in his office. Although a plea of alibi cannot be summarily dismissed, it is essential to assess its genuineness and authenticity. This evaluation can only be properly undertaken when the matter is brought before the trial Court. In the case titled "Naseer Ahmad v. The State (PLD 1997 SC 347), the apex court of Pakistan has observed that a contemporary trend has emerged wherein eyewitnesses occasionally alter their statements, diverging from the prosecution's case, and may also submit affidavits during the bail application hearings of accused individuals. This practice appears to be aimed at casting doubt on the prosecution's case to facilitate the accused's release on bail. This requires a clear distinction between a preliminary assessment and the comprehensive evaluation of evidence that can only be done during the trial after considering all evidence adduced by both parties before the trial court.
8. Reverting to the plea of the learned counsel for the applicant that the co-accused, specifically Abdul Malik, Abdul Hameed, and Aftab Ahmed, have been granted pre-arrest bail by the learned Trial Court, whereas the request for pre-arrest bail by the present applicant has been rejected. It is pertinent to note that the aforementioned applicants were predominantly associated with injuries categorized under Sections 337-A(i), F(i), and L(2) of the Pakistan Penal Code, which are bailable offences. In contrast, the role of the present applicant is entirely distinct from those of the co-accused who were granted pre-arrest bail. Consequently, the principle of consistency does not apply in this matter. The reliance can be placed in the case of Muhammad Atif V/S The State 2024 SCMR 1071.
9. Pre-arrest bail is an exceptional remedy characterized by a limited scope. It may only be granted under circumstances where the applicant does not prima facie appear to have committed a non-bailable offence or where there exists a necessity for further probe into his culpability, as outlined in Section 497(2) Cr.P.C which is prima facie missing in the present case. The primary objectives of pre-arrest bail are to protect individuals from the threat of arrest arising from potential abuse of process driven by malicious intent or malevolence, which has not been demonstrated in the present case. The reliance can be placed in the case of Rana Abdul Khaliq V/S The State 2019 SCMR 1129.
10. The case law relied upon by the learned counsel for the applicant/accused is not applicable to the facts; and circumstances of the present case.
11. With this observation, in my tentative assessment at the bail stage, the pre-arrest bail application of the applicant/accused is dismissed. Resultantly, interim pre-arrest bail granted to the applicant vide Order dated 02.04.2024 is hereby recalled.
12. Needless to mention here 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
Manzoor