ORDER SHEET

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

1^st Crl. Bail Appln. No.S-548  of 2023.

Date                           Order with signature of Hon’ble Judge

1. For orders on office objection.

2. For  hearing of Bail Application.

Mr. Ahmed Bux Abro, Advocate along with applicant (on bail).

Mr. Imran Mubeen Khan, Asst. Prosecutor General.

Date of Hearing      : 26.10.2023.

O R D E R

            Through this application, applicant Muhammad Ismail alias Muhammad Juman Brohi seeks his admission on pre-arrest bail in crime No.204 of 2023, registered at P.S Kamber City, for offence under Sections 395, 506/2, 337-F(i), 504, 148, 149, PPC. Earlier, his application seeking pre-arrest bail was dismissed on 31-8-2023 by the learned 2^nd Additional Sessions Judge, Kamber.

2.         In nutshell the case of prosecution is that on 13.05.2023, at about 2.00 p.m., near Tunia Petrol Pump situated on Kamber-Mirokhan Road, the applicant having iron rod along with four others, armed with pistols and guns, after abusing inflicted iron rod blow to complainant Raheem Bakhsh, robbed cash and then went away by extending threats.  Hence, such FIR was lodged by the complainant on 10.6.2023.

3.         It is informed that the case has been challaned and is pending trial in the Court of Civil Judge & Judicial Magistrate-II, Kamber vide Criminal Case No. nil of 2023 re-The State v. Muhammad Ismail Brohi.

4.         Complainant Raheem Bakhsh has appeared upon service of notice and submits that he has no means to engage his Counsel; however, he has shown his trust upon the learned APG.

5.         Learned counsel for the applicant submits that instant FIR after thorough investigation was recommended for disposal under “B” class and such report in terms of 173, Cr.PC was filed by the I.O. before the Judicial Magistrate having jurisdiction; however, the Judicial Magistrate after hearing the parties and perusal of the police report did not concur his opinion with police and by taking cognizance joined the applicant in the case vide his order dated 21.8.2023 and in compliance of said order the I.O. submitted the charge sheet, wherein the accused is facing trial. He further submits that when the prosecution itself had dented its own case by disposing of the FIR under false “B” class, the case against the applicant requires further enquiry within the meaning of sub-section (2) to Section 497, Cr.P.C, hence prays for confirmation of interim pre-arrest bail already granted to the applicant. 

6.         Learned Asst. P.G., after going through the file opposes the bail application, on the grounds that through the applicant was kept in column No.2 of the challan, yet the Magistrate has taken cognizance against him, hence he is not entitled for bail.  The complainant also opposes the bail application, stating that the applicant after grant of interim pre-arrest bail has been issuing threats of dire consequences to him, therefore, he is not entitled for bail.  

7.         Admittedly, the incident as is mentioned in the FIR had occurred on 13.5.2023 and report whereof was lodged on 10.06.2023 i.e. with the delay of about 27 days without plausible explanation, though the distance between the police station and the place of occurrence is only ½ kilometer. Delay in criminal cases has always been held to be fatal to the prosecution by the Apex Court and it has further been observed that in such event the benefit of such delay must be extended in favour of the accused, particularly at bail stage. As far as punishment provided by law is concerned, all the sections applied in the FIR are bailable, except Sections 506/2 and 395, PPC. The punishment for offence u/s 506/2 PPC is seven years, whereas Section 395, PPC carries two punishments; hence following the dictum of law that lesser punishment is to be considered at bail stage.

8.         In the circumstances and in view of above factual and legal position on the record, I am of the opinion that the applicant has made out prima facie case for confirmation of pre-arrest bail. Consequently, the interim pre-arrest bail granted to him on 28.9.2023 is hereby confirmed on same terms and conditions. The applicant is directed to continue appearing before the trial Court and the trial Court in turn is directed to conclude the trial within shortest possible time under intimation to this Court.

                                                                                                                        JUDGE 

Qazi Tahir/*