IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
CRL.BAIL.APPLICATION.NO. S-589 of 2011
Date of hearing: 18.08.2011
Applicant : Badshah alias Muhammad Saleh through
Mr.Saeed Jamal Lund Advocate
Respondent: State through Mr. Syed Sardar Ali Shah,
Assistant Prosecutor General
Muhammad Ali Mazhar--J., The applicant has brought this post arrest bail in Crime No.61 of 2010 lodged at Police Station “A” Section Khairpur.
2. The complainant Nadir Ali Shah lodged the above FIR under Section 447, 506/2, 427, 147, 149, 148, 504, PPC which is reproduced as under:-
“Complaint is that I have agricultural land in deh Khairpur in my name and in the name of my brother Mithal Shah, in which there is garden of dates, which is mortgaged with Agricultural Bank. On 5.3.2010, I and my brother Akhtar Ali Shah went to put NARR in dates together at 8-00 hours we reached at the land, and prior to us, accused Allah Wassayo alias Wasno 2.Mohammad both with pistols, 3.Abdul Sattar with gun, 4. Mir Hassan, 5. Badshah, 6. Dilijan 7.Yaseen with hatchets, 8.Amir Jan, 9.Ehsan 10.Asif, 11.Murid 12.Panjal 13.Sabzal all with lathies, all by caste Jamali resident of village Sanwal Khan Jamali were standing out of whom accused Allah Wasayo alias Wasno, Badshah Jamali and others jointly said to us to withdraw from Crime No.157/2009 lodged at Police Station A-Section, Khairpur. Above accused have occupied the land, and they did not allow us to put NARR in the dates, and they abused and issued threats of murder. Due to fear of weapons we went back. Prior to this, accused Badshah Jamali had caused lathi blow on the head of my brother Mithal Shah, in which his eye was lost. Faisla between both the parties, was held by nekmards Syed Amjad Ali Shah, Seth Mohammad Saleh Ansari and Sardar Imtiaz Hussain Phulpoto, in
which the accused party was found guilty and the matter of land was decided in my favour. Then I made applications to the higher officers, but no legal action was taken against the accused. Now I appear and lodge the complaint that the above accused in collusion with each other rioted, and did not allow me to put NARR in dates, and caused damages. They have forcibly occupied the land on the point of weapons, and they have abused and issued threats of murder. I apprehend danger of life and property at the hands of accused”.
3. I have heard the learned counsel for the applicant and learned Assistant Prosecutor General for the State. The notice was issued to the complainant Nadir Ali Shah but SHO Police Station, A-section, Khairpur informed the Court that the complainant is confined in another case in Central Prison, Khairpur, however a notice was served upon him and process was returned with the signature of Assistant Superintendent Central Prison, Khairpur and acknowledgment of complainant but in spite of service of notice no body appeared for the complainant.
4. The learned counsel for the applicant argued that the applicant is innocent and has been falsely implicated. It is further contended that complainant party has managed false medical certificate to make out a case under Section 336 PPC which was challenged by accused party before the Medical Board and the said medical certificate has been suspended by the Special Medical Board. Mashirnama shows that injured Syed Mithal Shah has no visible injury on his head. It was further contended that complainant has inimical terms with Jamali Tribe, therefore there are so many criminal cases pending adjudication against each other. It was further contended that there is a delay of seven days in lodging of FIR. The learned counsel further argued that the bail granted to other co-accused has already been confirmed and since medical certificate has already been suspended, therefore the question of applicability of Section 336, PPC, which was subsequently added has become a case of further inquiry and the case of applicant is at par with the co-accused.
5. The learned Assistant Prosecutor General for the State contended that the medical certificate has already been suspended by the medical board therefore the applicability of section 336, PPC can only be evaluated or assessed during trial after restoration of medical certificate by the medical board. He further argued that at one place in the FIR it is stated that the present applicant was armed with hatchet and along with other accused, he threatened the complainant party to withdraw from the Crime No.157/2009, while on the other hand, a vague statement without any exact date and time has been mentioned in the FIR that prior to this accused Badshah Jamali had caused lathi blow on the hand of complainant’s brother Mithal Shah in which his eye was lost. This is the same incident in which the medical board has suspended the medical certificate, therefore, the learned APG concedes to the grant of bail to the applicant.
6. It is a matter of record that earlier, the applicant had moved bail application in the trial Court which was declined vide order dated 1.2.2011 on the ground that according to the provisional medical certificate injured Mithal Shah had sustained injuries and injury No.2 was reserved for expert opinion/eye surgeon and as per final MC, injured sustained hard and blunt substance injury at his eye and it was Itlaf-i-Salahiyyat-i-udw under section 336, PPC which falls within the Prohibitory Clause. After rejection of bail, the applicant approached to this Court and filed a bail application No.129/2011 which was subsequently withdrawn by the applicant solely on the ground that section 336, PPC in which his bail application was dismissed by the trial court is no more in existence as the medical board has suspended the MC in which injury under Section 336 PPC was mentioned. After withdrawal of this bail application, the applicant moved another bail application in the trial Court which was again declined vide order dated 8.6.2011 with the observation that report of the special medical board reveals that meeting was convened on 11.5.2011 but injured Syed Mithal Shah did not appear before the Special Board for three consecutive dates therefore, certificate issued by Senior Medical Officer, Civil Hospital Khairpur was suspended. The main reason for declining the bail second time to the applicant was that the special medical board has not described in their report that notices were issued to injured Syed Mithal Shah nor they have described about efforts of services of notices upon injured by process serving agency.
7. Though on this ground the bail was declined but fact remains that the medical certificate at present is suspended and it is also an admitted fact that it was suspended with the observation that the injured did not appear before the board on three consecutive dates. It is also a fact which transpires from the bail order dated 29.04.2010 passed by the court of Sessions Judge, Khairpur in Cr.B.A.No.381/2010 that ten other co-accused have already been granted bail. It is also a fact that Section 447, 427, 147, 148, PPC are bailable offences while the effect of section 506-B, PPC will be examined during the course of trial whether the tangible evidence is available which may connect the applicant for the offence of criminal intimidation or not. However, at present, it is a case of further inquiry. So far as section 336, PPC is concerned, though, it is non bailable but keeping in view the peculiar circumstances of the case in hand when medical board itself has suspended the medical certificate due to non-appearance of the injured three times consecutively therefore, there is no cavil to the proposition that at present there is no medical certificate in force which may hold responsible or guilty to the present applicant beyond any shadow of doubt for the punishment of an offence of Itlaf-i-Salahiyyat-i-udw, therefore, on this facet also, it is a case of further inquiry.
8. The basic concept of bail is that no innocent person’s liberty is to be curtailed until and unless proved otherwise. Essential prerequisites for grant of bail by virtue of subsection 2 of section 497 Cr.p.c is that the court must be satisfied on the basis of material placed on record that there are reasonable grounds to believe that the accused is not guilty of an offence punishable with death or imprisonment for life. Condition of this clause is that sufficient grounds exist for further inquiry into the guilt of accused which would mean that question should be such which has nexus with the result of case and can show or tend to show that accused was not guilty of offence with which he is charged. Grant or rejection of bail is a discretionary relief but such discretion should be exercised fairly and judicially. The word discretion when applied to court means sound discretion guided by law in a judicious manner and to lessen the hardship of the people. It is well settled and basic principle of law that the bail is not to be refused as punishment.
9. The bottom line is that I feel no hesitation in my mind to hold that the applicant is entitled to be enlarged on bail. Consequently, this bail application is allowed, the applicant is granted bail subject to furnishing solvent surety in the sum of Rs.100,000/- with P.R bond in the like amount to the satisfaction of the trial Court.
Dated. 26.8.2011 Judge