ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Cr. Bail Appln. No.S- 233 of 2023.
Date of hearing Order with signature of Judge.
1.For orders on office objection as flag A.
2.For hearing of bail application.
Applicant
( Shahnawaz & another): Through Mr. Zafar Ali Malghani, Advocate a/w
applicants (on bail).
The State : Through Mr. Ali Anwar Kandhro, Addl. P.G.
Date of hearing : 15.12.2023.
O R D E R.
MUHAMMAD SALEEM JESSAR-J.:-Through this application, applicants seek their admission on pre arrest bail in Crime No.82 of 2021 of P.S A-Section Thul, for offences under Sections 338-C, 354, 509, 34 PPC. Applicants filed anticipatory bail application before the Court of Sessions which was heard by learned Additional Sessions Judge-II, Jacobabad vide Cr.Bail Appln. No.384 of 2023 where initially applicants were granted ad interim pre arrest bail and then after hearing the parties its confirmation was declined vide order dated 29.04.2023, hence this application has been maintained.
2. Brief facts of the prosecution case as per FIR are that complainant Mst:Sanam lodged FIR on 23.6.2021 at PS A-Section Thul stating therein that about four months back complainant married with Shahnawaz Soomro who kept misbehaving and maltreating her on every matter so also sold out her 2 tola ear rings and usurped Rs.20,000/- of complainant. Husband of complainant namely Shahnawaz and her father in law Rasool bux Soomro also asked her to bring Rs.50,000/- from her parents otherwise she would be done to death by leveling false allegations. The complainant having pregnancy of three months had gone to house of her parents on 10.6.2021. Thereafter complainant alongwith her father Mumtaz Ali Soomro and mother Mst:Imam Zadi at 10-00 AM morning went to house of her husband Shahnawaz where her father and mother said to Shahnawaz not to tease their daughter on which he abused and caught hold complainant from her hair then throwing her on earth kept causing kicks and fists blows on her stomach meanwhile her father and mother intervened, who rescued to complainant by giving sakes of Holy Quran. On notice, they saw blood was oozing from her body. Later complainant went to doctor for her treatment where she got treatment but due to above kicks and fists blows the miscarriage happened. Subsequently complainant filed such application before Sessions Court and after obtaining order from there appeared at PS and lodged such FIR to the above effect.
3. Complainant inspite of notice has chosen to remain absent. Pursuant to directions contained under previous order the trial Court/Civil Judge & Judicial Magistrate, Thul has submitted progress report as well as status of the trial in respect of Cr. Case No. Nil of 2023 re: State v. Shahnawaz Soomro and others. Report reveals that formal charge against the accused was framed on 13.9.2023. Right from framing of charge upto 22.11.2023 no one has effected appearance before the trial Court.
4. Learned counsel for the applicants places on record certified copy of case diary dated 06.12.2023 under the cover of his statement dated 15.12.2023, taken on record. Per diary, the applicants have joined trial proceedings. Learned counsel submits that all the offences with which the applicants have been charged carry maximum punishment upto 7 years. Besides the case is being tried by Judicial Magistrate.
5. Learned Addl. P.G opposes the bail application on the ground that applicants are nominated in the FIR. He; however, could not controvert the fact that offences with which the applicants stand charged carry maximum punishment upto 7 years. Besides the complainant as well as her witnesses have not been appearing before the trial Court as well as before this Court.
6. No doubt the applicants are nominated in the FIR which was lodged by complainant with the delay of about 13 days. However, the incident pertains to the year 2021 and after about two years the police have submitted the charge sheet against the applicants. Besides all the sections are carrying maximum punishment upto 7 years. Since the case is being tried by Judicial Magistrate, in such eventuality, in case the prosecution may succeed to prove its charge against accused, even then punishment of more than three years can not be visualized. In case of Manzoor Ali alias Mumtaz v. The State (2001 P.Cr.L.J 344), learned Bench of this Court while granting bail has 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.”
7. In the circumstances and in view of dicta laid down by learned Apex Court in the case of Mohammad Tanveer v. The State (PLD 2017 S.C 733), case against the applicants requires for further enquiry. Consequently, instant bail application is hereby allowed. Interim bail granted to the applicants on 05.5.2023 is hereby confirmed on same terms and conditions. Since the applicants have already surrendered before the trial Court and have joined the trial, therefore, it is expected that the trial Court shall expedite the trial and conclude it within shortest possible time under intimation to this court.
8. Needless to say, the observations made hereinabove are tentative in nature which shall not influence the mind of trial Court while deciding fate of the case.
JUDGE
Shabir