IN THE HIGH COURT OF SINDH,
CIRCUIT COURT LARKANA
Crl. Bail Appln. No. S- 436 of 2023.
Applicant: Sikander Ali Kalhoro, through Mr. Imtiaz Ali Mugheri, Advocate.
Complainant: Ahmed Ali Kalhoro, through Mr. Sarfraz Ali M. Abbasi, Advocate.
Respondent: The State, Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing: 25.01.2024.
Date of order: 25.01.2024.
Date of reasons: 06.02.2024.
ORDER
Muhammad Saleem Jessar, J: Through this application, applicant Sikander Ali son of Muhammad Ibrahim Kalhoro has sought for his admission to pre-arrest bail in Crime No. 59 of 2023, registered at Taluka P.S Larkana (District Larkana), for offences punishable under Sections 337-A (i), 337-F (i), 337-H (2), 506 (2), 504, 114, 147, 148 and 149 P.P.C. His similar request was turned down by learned Additional Sessions Judge-I, Larkana, vide his Order dated 05.08.2023.
2. The facts of prosecution as depicted from para 2 of the impugned order, reads as under:
“As per F.I.R on 15.7.2013 at 11.30 p.m., bail applicants along with co-accused were breaking wall of Otaq of complainant’s relative Ibadullah and when complainant party asked why they were so doing, co-accused Shoukat Ali instigated his partners and caused “danda” blow injury to complainant on his head; accused Muhammad Ali caused butt blow of gun to his brohter Imdad Ali on his head and right arm; accused Sikander Ali caused “danda” blow to his nephew Farhan Ali on his back of head; accused Zahid Ali caused iron rod blow to his brohter Mukhtiar near his left eye; accused Siraj Ahmed caused butt blow of his gun to his nephew Safdar Ali near his right wrist; accused Sabir Hussain caused iron digging bar blow to his son Riaz Hussain on his head and left flank; accused Asad Ali caused hatchet blow injury to his nephew Abdul Fatah on his both arms; accused Haji Akhtiar caused pistol butt blow to his brother Abdul Hameed on his left arm and accused Asif made aerial firing from his repeater and then eluded by issuing threats.”
3. Learned counsel for the applicant mainly contended that, the applicant has been implicated in this case by complainant with malafide intention; ulterior motives; previous ill-will and grudge; that F.I.R is delayed for about 20 hours; that it is not possible for a human-being to observe the act of each caused in free fight and then specifically nominate each accused in F.I.R. Learned counsel further contended that the complainant has also suppressed that the applicant party also received serious injuries at the hands of complainant party for which the applicant party approached to concerned police and letter for medical treatment was issued to co-accused Zahid Ali but F.I.R was not registered by police, as such an application under Section 22-A & 22-B Cr.P.C was filed in the Court of learned Sessions Jduge, Larkana, which was disposed of by learned 1st Additional Sessions Judge, Larkana, with observations that applicant after getting final medical certificate may approach concerned police and after issuance of final medical certificate F.I.R No.67/2023 has been registered with same police station by co-accused Zahid Ali against complainant of instant case and others. He further added that counter version of incident has come on surface; therefore, it would be determined after trial that which of the party is aggressor and which is aggressed upon. He further contended that the plot/Otaq as claimed by the complainant basically is the property of the applicant party and the complainant party in order to usurp the same have assaulted upon applicant party and had also caused injuries to some of the prosecution witnesses from accused/ applicant side for which other FIR bearing No.67/2023 was got registered on 25.08.2023 at the same Police Station. Hence dispute between the parties over property has been admitted, therefore, present FIR was lodged with mala fide intentions and ulterior motives. He further submitted that though the injury allegedly attributed to applicant has been declared by the Medico legal Officer falling under section 337-A-(iv) P.P.C being defined as Shajjah-i-Munaqillah, which provides punishment of Arsh which shall be 15% of the Diyat and may also be punished with imprisonment of either description for a term which may extend to 10 years as Tazir. Hence submits that in view of the admitted enmity/ dispute over the plot the case against the applicant requires further enquiry. He further argued that punishment of Shajjah-i-Munaqillah has also been defined under section 337-N, PPC. In support of his contentions, he places his reliance on cases of Muhammad Yaqoob and 4 others v. The State (2007 MLD 1067), Mushtaq Ahmed and 4 others v. The State (2008 MLD 232), Ali Muhammad v. The State (PLD 2009 Lahore 312), Muhammad Hussain and others v. The State (2009 P.Cr.L.J 908), Ashiq v. State (2009 MLD 929), Hafiz Muhammad Naeem and 3 others v. The State and another (2012 P.Cr.L.J 104), Ali Athar v. The State and another (2013 P.Cr.L.J 487) & Abdul Wahab and others v. The State and others (2019 SCMR 516). Besides the above submissions, learned counsel submits that the case has been challaned and the applicant is no more required for further investigation and the applicant has joined the trial proceedings therefore, ad-interim already granted to the applicant may be confirmed.
4. Learned counsel appearing for the complainant vehemently opposed the grant of bail to applicant/ accused on the grounds that the applicant has been nominated in the F.I.R with specific role of causing “danda” blow to P.W Farhan on his head, which is vital part of his body and said injury has been declared by the Medico Legal Officer as Shajjah-i-munaqillah which carries punishment of Arsh and imprisonment of either description for ten years, therefore said punishment does fall under the purview of prohibition, as contemplated under subsection (1) of Section 497, Cr.P.C, hence the applicant is not entitled for the concession of extra ordinary relief in shape of pre arrest bail. He next submitted that, at bail stage the Court has to tentatively form an opinion by adducing the evidence on record without going into the merits of the case and deeper appreciation of the evidence cannot be gone into and it is only to be seen whether the accused is prima-facie connected with the commission of offence or not. In support of his arguments, he placed his reliance upon the case of Bakhti Rehman v. The State (2023 SCMR 1068).
5. Learned Addl. P.G. also opposed the application. He also re-iterated mostly the same arguments as made by counsel for the complainant.
6. From tentative assessment of the record it appears that there is delay of more than one day in lodging of the F.I.R. It is well settled law that the delay is falling within the ambit of deliberation and afterthought, therefore, it is always considered to be fatal for the prosecution case. Moreover, the parties are litigating each other in respect of the same property, which is the subject matter of the instant matter and in this regard the learned Advocate for complainant has already placed on record a copy of Memo of F.C. Suit No. 71 of 2023 pending in the Court of learned 2nd Senior Civil Jduge, Larkana between the parties. Moreover, it further appears from the record that, there is counter version of the incident, as from the side of applicant one co-accused Zahid Ali has also lodged F.I.R No. 67 of 2023 with same police station i.e. Taluka P.S Larkana, against complainant of this case and others for offences punishable under Sections 337-A (i), 337-A (ii), 337-F (i), 114, 506 (2), 504, 148 and 149 P.P.C. Perusal of F.I.R No.67/2023 reflects that the place of incident is different but the date and time of the alleged is same, whereas the motive as set-out in both F.I.Rs, is also same. Prima-facie, it appears that, if there are counter cases between the parties, as such it would be determined after trial that which of the party is aggressor, and which one is aggressed upon.
7. It further appears from the record that the injury assigned to applicant has been declared as “Shajjah-i-munaqillah” falling under Section 337-A (iv) P.P.C, which is punishable to “arsh” which shall be fifteen per cent of the “diyat” and may also be punished with imprisonment of either descriptions for a term which may extend to ten years as Ta’zir. Apparently, the primarily sentence which is to be awarded to an accused on his conviction is payment of “Arsh” [equal to fifteen per cent of the diyat]. The use of word “may” qua the sentence of imprisonment upto ten years clearly shows that the sentence of imprisonment is entirely discretionary with the Court. As such, on conviction for an offence under Section 337-A (iv) P.P.C, the Court will award the sentence of payment of “Arsh” and keeping in view the circumstances of a case may or may not award any sentence of imprisonment. The offences falling within the prohibitory clause of section 497 Cr.P.C, are those which are punishable with death, imprisonment for life or imprisonment upto ten years, meaning thereby that on conviction sentence of imprisonment upto ten years or life imprisonment or death has to be awarded by the Court. This is not the position qua the offence under Section 337-A (iv) P.P.C., Therefore, in my view the offence under Section 337-A (iv) P.P.C., though non-bailable does not fall within the prohibitory clause of section 497 Cr.P.C. Moreover, the case is being tried by the Magistrate, as such sentence for more than three years could not be visualized.
8. Further, the applicant has already joined the trial and attending the trial Court regularly without misusing the concession of interim bail and as per progress report furnished by the learned trial Court, the trial of the case has already commenced and two prosecution witnesses have been examined. As such, no purpose would be served if the interim bail of applicant is recalled and he is put behind bars.
9. In view of foregoing, the application in hands was allowed vide short order dated 25.01.2024. Consequently, interim pre-arrest bail already granted to applicant vide Order dated 09.08.2023, was confirmed on same terms and conditions and these are reasons for short order.
Judge
Ansari