2017 PLP 32 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned pre-arrest bail application, applicants Barkat Ali and Seengar Ali have impugned order dated 24.05.2014, passed by the Court of Additional Sessions Judge (Hudood), Sukkur, whereby their earlier bail application was declined.

2. Relevant facts spelt out from instant bail application are that complainant Kamaluddin lodged, FIR on 22.03.2014, at Police Station Rohri that on 02.02.2011, at about 1130 hours, he along with his brother Bilaluddin, was sitting on chair at their shop, and 8 nominated accused armed with lathis came there. On instigation of accused Akhtiar Ali, remaining culprits caused lathi blows, resultantly, Bilaluddin, Ali Dino and Riaz Ali sustained injuries.

3. Learned Counsel for applicant contended that applicants are innocent and have been falsely implicated by the complainant in instant FIR with ulterior motives as parties are disputed over matrimonial affairs; that there is delay of about one month and 19 days in lodging of FIR for which no plausible explanation has been furnished by the complainant; that complainant obtained letter for medical treatment on same day but malafidely did not lodge FIR with the police; that 05 accused persons have already been granted bail by learned trial Court; that applicants also approached the police for lodgment of FIR regarding same incident but their request was declined, whereupon one of accused Akhtiar Ali filed Cr. Misc. Application before Justice of Peace for lodgment of FIR which was declined, consequently, applicant also approached this Court with same prayer, but ultimately they availed alternate remedy by filing Direct Complaint No.01 of 2015, under sections 337A(i), 506, 34, P.P.C. before the Court of 1st Civil Judge and J.M, Rohri, whereby statements of complainant, his witnesses as well Medico-Legal Officer Dr. Bisharat Ali were recorded and MLO supported the medical certificates issued by him regarding causing of injury to accused party namely Deedar, Sajid Ali and Barkat; that allegations levelled by the complainant are counter-version, hence it is yet to be determined that who was aggressor one; that the alleged offence is punishable for 05 years; that charges have been framed in State case as well as Direct Complaint and applicants are regularly appearing before learned trial Court. Learned counsel relied on PLD 2009 SC 58, 2008 PCr.LJ 314, 2001 PCr.LJ 806 and PLD 1989 SC 347.

4. While controverting the above submissions, learned Counsel for complainant vehemently contended that names of present applicants are mentioned in the FIR with specific role that they have caused lathi blows to the complainant party and they sustained injuries; that complainant after obtaining letter for medical treatment, brought the injured at hospital and after their treatment when medical certificate were issued then FIR was lodged; that learned Counsel for applicant has not alleged any mala fide on the part of complainant as well as the police, hence applicants are not entitled for grant of pre-arrest bail. Learned counsel relied on 2006 SCMR 933, 2009 YLR 1330, 2003 YLR 2131 and 2002 SCMR 442.

5. Learned AAG submits that one injury attributed to applicants was caused on fore-arm of the injured Bilaluddin, however, remaining injuries are bailable, hence he extended no objection.

6. Heard learned counsel for the parties supported with case law and perused the material available on record.

7. Perusal of record reflects that both parties are belonging to same vicinity and are close relatives and their disputes are going on matrimonial affairs which is reflected from the averments of FIR. There was another dispute between the parties over sewerage line leading from the house of the accused towards outer side. Alleged incident occurred on 02.02.2014, at 11:00 a.m. and complainant obtained letter for medical treatment on the same day, and received medical certificate was on 03 02.2014, while FIR has been lodged on 22.03.2014, but such delay has not been explained by the complainant plausibly. Conversely, accused Akhtiar Ali has also lodged Direct Complaint No.01 of 2015, under sections 337-A(i), 506/2 and 34, P.P.C. against complainant party before the same Court of 1st Civil Judge and J.M. Rohri. Learned trial Court has already framed charge in both cases against both parties and statements of some of their witnesses have been recorded. It is signifieant to mention that Dr. Moula Bux in his evidence has supported the factum of sustaining injuries by accused persons and issuance of medical certificate by him. Moreso, 05 co-accused have already been granted bail by learned trial Court. Indeed, complainant lodged FIR regarding the causing of injuries against accused but he has concealed the factum of causing injuries to the opposite party during the incident which creates doubts, while accused party also filed direct complaint against complainant party by alleging same set of allegations and causing of injuries to them by the complainant party in same incident, consequently, both cases would be treated as counter cases and bail in counter versions of the parties may be granted as a matter of right till the determination of the act of aggression by the trial Court after recording of evidence at the trial. It is well settled that the benefit of doubt even at bail stage will be extended in favour of accused.

8. Considering the above circumstances, applicants have succeeded to make out their case for grant of bail. Consequently, interim pre-arrest bail already granted to the applicants vide order dated 27.05.2014, stands confirmed on the same terms and conditions. Applicants are directed to appear regularly before learned trial Court to face their trial. However; in case applicants misuse the concession of bail, learned trial Court would be at liberty to initiate legal action against them in accordance with law. Bail application stands disposed of in the above terms. MH/B-9/Sindh Bail granted.