ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

1st Cr. Bail Appln. No.S- 484   of   2023.  

Date of hearing                                Order with signature of Judge.

1.For orders on office objection.

2.For hearing of  bail application.

 

Applicant

(Khushhal Brohi)                      :     Through Mr. Imtiaz Ali Mugheri, Advocate.

                                               

The State                       :       Through Mr. Ali Anwar Kandhro,  Addl. P.G.

 

Complainant                               :     Through Mr. Ghulam Hussain N. Surahio, Advocate.

(Muhammad Sharif)

 

 

Date of hearing            :       01.12.2023.

 

O R D E R.

 

            Through this application, the applicant seeks his release on bail in Crime No.26 of 2023, registered at P.S Bachoo Khoso, District Jacobabad, under Sections 337-A(i), 337-F(i), 337-F(v), 504, 147, 148, PPC. Such plea of the applicant has been declined by learned Sessions Judge, Jacobabad vide order dated 17.8.2023.

2.         Per FIR, the applicant Khushhal Brohi caused lathi blow to injured PW Mahukumuddin, which landed at his hand, besides co-accused Abdul Basit caused lathi blow to same injured on his head.   

3.         In compliance of previous directions, learned Counsel for the applicant submits certified copies of memo of bail application along with order dated 26.7.2023 passed by the trial Court/Civil Judge & Judicial Magistrate, Thul as well as order dated 17.8.2023 passed by learned Sessions Judge, Jacobabad, declining the bail plea of the applicant, so also photocopies of mashirnama and receipt regarding delivery of possession of the land to the applicant’s side by the bailiff of the Court of II-Senior Civil Judge, Jacobabad.  Learned Counsel for the applicants submits that co-accused Abdul Basit assigned specific role of causing lathi blow to injured Mahukumuddin on his head has been granted pre-arrest bail. He further submits that the punishment for the injury attributed to applicant does not attract the prohibition contained in Section 497, Cr.P.C; hence, he may be released on bail. In support of his contention, he places reliance on the case reported as Wali Muhammad alias Hajjan v. The State (2022 PCr.LJ Note 66).

4.         Learned Addl. P.G. appearing for the State does not oppose the bail application and submits that the offence with which the applicant is charged carries maximum punishment of 5 years, therefore, does not fall under the prohibitory clause of Section 497, Cr.P.C.

5.         On 05.10.2023 Mr. Abdul Hussain Jalbani advocate had filed Vakalatnama on behalf of complainant and at his request matter was adjourned to 30.10.2023. On that date, complainant Muhammad Sharif appeared in person and sought time on the ground of illness of his Counsel and the matter was adjourned to 23.11.2023; however, on 23.11.2023 neither complainant nor his Counsel shown appearance; hence, the matter was adjourned for today. Today, Mr. Ghulam Hussain N. Surahio advocate has appeared, files his Vakalatnama on behalf on behalf of complainant and seeks time. The request so made by Mr.Surahio is nothing but appears to be an attempt to linger on the matter and also to waste the precious time of the Court, hence is declined. Mr. Ghulam Hussain N. Surahio, learned Counsel for the complainant, opposes the bail application and submits that applicant is named in the FIR and specific role of causing lathi injury on the hand of injured Mahukumuddin is attributed to him, therefore, he is not entitled for bail.

6.         Heard learned counsel for the parties and perused the record.

7.         Admittedly, there is 05 days’ delay in lodgment of FIR without any plausible explanation. The delay in criminal cases has always been held by the superior Courts to be fatal for the prosecution.  The case has been challaned, which is now pending for trial before the Court of Civil Judge & Judicial Magistrate, Thul, where it is fixed on 04.12.2023 for framing of charge. Since the parties are already on disputed terms over the landed property and per documentary evidence the suit filed by the applicant’s side has been decreed in their favour, which too was maintained at the appellate stage; however, complainant party has filed civil revision application before this Court, which shows malafide on the part of prosecution. This makes the case of applicant to be one of further enquiry as contemplated under sub-section (2) of Section 497, Cr.P.C. The injury attributed to present applicant carries maximum punishment of 05 years, hence the offence, with which the applicant is charged, does not attract the prohibition contained in Section 497, Cr.P.C.  In the case of Manzoor Ali alias Mumtaz v. The State (2001 PCr.LJ 344), the learned Bench of this Court while granting bail to the accused held as under:-

            “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.         Accordingly, in view of no objection extended by the learned Addl. P.G. and in view of above admitted factual position on record, I am convinced that the applicant deserves to be released on bail.

9.         Consequently, instant bail application is, therefore, allowed and the applicant is directed to be released on bail subject to his furnishing solvent surety in the sum of Rs.50,000/- (Rupees fifty thousand) and P.R bond in the like amount to the satisfaction of trial Court. 

 

JUDGE