IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

 

Crl. Bail Application No. S- 715   of  2023

 

 

 

Applicant                         :  Gada Hussain @ Ali Sher Brohi,

                                         through M/s Ashique Ali Jatoi, Liaquat Ali

                                         Bhurgri & Naseer Ahmed Wagan, Advocates.

 

 

State                              :  Through Mr. Aitbar Ali Bullo, Deputy

                                          Prosecutor General.

 

Complainant                    :  Through Mr. Maqsood Ahmed Khoso,

(Muhammad Ismail)            Advocate.

                            

 

 

Date of hearing      :  19.02.2024.

Date of Order        :  19.02.2024.

 

O R D E R.

Muhammad Saleem Jessar, J.-  Applicant Gada Hussain alias Ali Sher son of Khuda Bakhsh Brohi, seeks his release on bail in Crime No.70/2023, registered at Police Station Bahram, District Kamber-Shahdadkot, u/s 337-A(i), 337-A(ii), 337-A(iv), 337-F(i), 506/2, 504, 147, 148, 149, PPC, after rejection of his bail plea by the learned 2nd Additional Sessions Judge, Shahdadkot, vide order dated 02.10.2023. 

2.         According to the case of prosecution, on 27.09.2023, at about 6.00 0.m., the applicant/accused along with four others, being armed with hatchets, pistols and gun etc., attacked upon the complainant party in the house of complainant situated in Village Muhammad Yaqoob Brohi, Taluka Mirokhan and after hurling abuses, inflicted injuries to PW Mumtaz Ali, Muhammad Nawaz, the brothers of complainant, and Hidayatullah, nephew of the complainant. Hence, such FIR was lodged by complainant on 30.9.2023.   

3.         Learned Counsel for the applicants submits that the applicant is innocent and has been falsely implicated in this case by the complainant due to previous ill-will. He next submits that FIR of the alleged incident has been lodged with delay of 03 days without plausible explanation. He submits that co-accused Sanwan @ Abdul Razak having identical role was granted pre-arrest bail by the learned Additional Sessions Judge-II, Shahdadkot in terms of order dated 23.10.2023 vide Cr. Bail Appln. No.1202/2023; however, allegation against the applicant is that he also caused hatchet blow to PW Mumtaz Ali, but he has been declined the concession of bail. He next submits that though the injured PW Mumtaz Ali sustained in all four injuries and out of four, one has been declared to be Shajjah-i-Munaqillah falling under Section 337-A(iv), PPC carries maximum punishment of 10 years; however, said injury is not specifically attributed to any one, therefore, at this juncture applicant cannot be burdened with said injury, as the co-accused have already been extended an extraordinary relief in shape of pre-arrest bail. He further submits that there are cross cases between the parties and the other side has also been granted bail, therefore, case against the applicant requires further enquiry in terms of sub-section (2) of Section 497, Cr.P.C; hence, prays that the he may be granted bail.

4.         Learned DPG, appearing for the State, does not oppose the bail application.

5.         Mr. Maqsood Ahmed Khoso advocate files Vakalatnama on behalf of complainant, taken on record. He; however, claims date. When confronted, he opposes the bail application and admits that his clients in cross case have been granted bail by the Court concerned. As far as injury attributed to applicant, he also admits that co-accused Sanwan @ Abdul Razak having same role was extended extraordinary relief and bail granted to co-accused Sanwan @ Abdul Razak has not been assailed by the complainant party.   

6.         Heard arguments and perused the record.

7.         Admittedly, the FIR has been lodged with delay of about 03 days without plausible explanation and delay in criminal cases has always been held to be fatal for the prosecution. No doubt, the applicant is named in the FIR and role of causing injury on the head of injured PW Mumtaz Ali is also attributed to him; nevertheless co-accused Sanwan @ Abdul Razak is alleged to have inflicted hatchet blow on the head of injurd PW Mumtaz Ali; hence, at this juncture, the injury on the head of PW Mumtaz Ali, which has been declared to be Shajjah-i-Munaqillah falling under Section 337-A(iv), PPC cannot be attributed alone to the present applicant.  Moreover, co-accused Sanwan @ Abdul Razak having identical role to that of the applicant has already been granted pre-arrest bail by the learned Court below. As far punishment is concerned, it has been embodied “may extend to ten years” hence the legislature has left it upon the discretion of the trial Court. Since the case is being tried by the Court of Judicial Magistrate, if after recording evidence of its witnesses, the prosecution may succeed to prove its charge against the accused, even then punishment of more than three years cannot be visualized. The case has already been challaned and the applicant is no more required by the police for interrogation or investigation. In view of dispute between the parties over matrimonial affairs, which is evident from bare reading of the FIR, the case against the applicants requires further enquiry as envisaged under sub-section (2) to Section 497, Cr.P.C. 

8.         For the forgoing reasons, in my view, the applicant has a good case for grant of bail. Consequently, instant bail application is hereby allowed and the applicant is directed to be released on bail, subject to his furnishing a solvent surety in the sum of Rs.50,000/- and P.R. Bond in the like amount to the satisfaction of trial Court.

9.         It needs no reiteration here that the observations recorded hereinabove are tentative in nature, which shall not influence the trial Court, in any manner, while deciding the fate of the case.

 

                                                                                                                        JUDGE         

  

Qazi Tahir/*