ORDER SHEET

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

1^st Cr. Bail Appln. No.S- 308 of 2023. 

Date                            Order with signature of Hon’ble Judge

1.For orders on office objection as flag A.

2.For hearing of  bail application.                        

Applicant

(Madad Ali Naich) :              Through Mr. Naushad Ali Tagar, advocate  a/w applicant   (on bail). 

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

Date of hearing     :              02.11.2023.

ORDER.

                        Through this application, applicant Madad Ali Naich seeks his admission on pre arrest bail in Crime No.47 of 2023 P.S Taluka U/Ss 337-F(v), 506/2, 504, 114, 34 PPC. Per report submitted by the Consumer Protection Judge/Judicial Magistrate, Larkana (trial Court) case has been challaned which is now pending before it (the trial Court) vide Cr. Case No.118 of 2023 re: State v. Madad Ali Naich and  others.  Applicant preferred his anticipatory bail before learned Sessions Judge, Larkana  which was assigned  to learned IIIrd Additional Sessions Judge, Larkana (Cr. Bail Appln. No.710 of 2023) where after hearing  the parties and considering material placed before it on record declined the prayer through impugned order  dated 07.6.2023, hence this bail application has been maintained.

                        Since the facts of prosecution case are already mentioned in the FIR and impugned order, therefore, there is no need to reproduce the same here again.

                        Learned counsel for the applicant submits that allegations against  the applicant/accused  is that  he allegedly caused iron bar blow to complainant which landed on his right hand which is  non-vital part of the body and said injury has been declared by the MLO to be punishable U/S Section 337-F(v) PPC and carries  maximum punishment upto five years. He next submits that co-accused Ghulam Umar, against whom same allegations have been leveled, has also been granted pre arrest bail by the same Court/IIIrd Additional Sessions Judge, Larkana vide order dated 07.6.2023 passed in Cr.Bail Appln. No.717 of 2023, whereas prayer made by the applicant has been declined. He next submits that co-accused Riaz Hussain and Naimatullah have also been granted bail by the IIIrd Additional Sessions Judge, Larkana through common order dated07.6.2023.  In support of his contention he places his reliance on the case reported as Abdul Ghaffar v. The State (SBLR 2023 Sindh 1343), hence submits that the case against the applicant requires further enquiry as well as law of parity  attracts, therefore, he may be admitted to pre arrest bail.

                        Learned Addl. P.G submits that as per medical evidence the  injured has allegedly sustained single injury which has been attributed to the present applicant as well as accused Ghulam Umar  hence  it is difficult to  determine at this stage as who is responsible  for said injury, hence he extended his no objection.

                        Complainant of this case was present before the Court on 14.9.2023 and stated that he has no means to engage counsel of his choice however, shown his trust upon  the prosecutor.

                        Admittedly the incident is said to have occurred on 12.5.2023 whereas  report thereof was lodged on 20.5.2023  i.e. the delay of about 9 days and distance between  Police Station and place of occurrence  is about 4/5 kilometers and no plausible explanation has been furnished by the prosecution for such an inordinate delay. Delay in criminal cases  has always been held by the Superior Courts  to be fatal for the prosecution case. Moreover complainant  has admitted in the FIR regarding enmity over landed dispute which too is the ground for holding that the applicant has been implicated for malafide intentions. The injury allegedly sustained by the injured/complainant has been declared by the Medico Legal Officer  as Jurah Ghyr Jaifah Hashmiah which is punishable  under Section 337-F(v) PPC and carries maximum punishment  of five years which does not exceed  the limits of prohibitory clause of section 497 Cr.P.C.  Case has been challaned where after  framing  of charge, the prosecution  has examined two witnesses  and no complaint regarding misusing of concession has been urged. 

            The case is being tried by Judicial Magistrate where, after recording evidence of prosecution witnesses, if prosecution may succeed to prove its charge against the applicant/accused even then  punishment  of more than three years  can not be visualized. The injury attributed to present applicant as well as  co-accused Ghulam Umar is the same and it is yet to be determined by the trial Court that out of two which one  was responsible  for causing the same. 

            In view of above discussion, it appears that the applicant has made out a good prima facie case for grant of extra ordinary relief in shape of pre arrest bail. In the  circumstances and in view of dicta laid down by the Apex Court in the case of Rana Muhammad Ashraf v. Muhammad Rafique  and another (PLD 2009 S.C 427), the basic ingredients  for grant of pre arrest bail are fully attracted  in this case, hence  the case against applicant requires further enquiry within the meaning of subsection 2 of Section 497 Cr.P.C.  Consequently, instant bail application is allowed. Interim order earlier granted to the applicant vide order dated 13.6.2023 is hereby confirmed on the same terms and conditions.

JUDGE 

Shabir