2023 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

Through instant bail application, applicants/accused Talib Hussain, Abdul Karim and Muzamil Hussain seek their admission on pre-arrest bail in Crime No.47/2021 Police Station, Bhirya Road district Naushehro Feroze for offence punishable under sections 452, 337A(i), 337A(iv), 337F(i), 337F(vi), 337L(ii) 506/2, 114, 147, 148, 149, P.P.C. The applicants preferred anticipatory bail application No.1344/2021 before Court of Sessions which subsequently was assigned to IInd Additional Sessions Judge Naushehro Feroze whereafter learned II-Additional Sessions Judge, Naushehro Feroze after hearing the parties turned down their request hence, instant bail application has been maintained.

2. As reported, case has been challaned by the police on 25.08.2021 which is now pending for trial before the Court of IInd Civil Judge/J.M, Bhirya City vide Criminal Case No.196/2021 Re-The State v. Tabarak Hussain and others.

3. The facts of the prosecution case are mentioned in the FIR attached with the memo of bail application and the same need not to be re-produced in view of the case of Moham ad Shakeel v. The State and others reported as PLD 2014 SC 458.

4. Learned counsel for applicants contends that parties are on strained relations over matrimonial dispute and this fact is admitted by the complainant in the FIR. Besides, the FIR is delayed for about Nine months. He next submits that all the Sections applied under FIR are bailable except sections 452 and 506/2, P.P.C. which carries maximum punishment upto Seven years hence, does not exceed limits of prohibitory clause of section 497, Cr.P.C. He further submits that after furnishing surety before this Court accused have joined trial proceedings and have not misused the concession extended to them. Hence, submits that case against applicants requires further inquiry therefore, by granting application interim pre-arrest bail granted to them earlier may be confirmed.

5. On the other hand, learned Additional Prosecutor General appearing for the State opposes the bail application on the ground that applicants are nominated in the FIR with specific role and ocular version is supported by medical evidence therefore, they do not deserve any leniency in shape of anticipatory bail. As far as delay in lodgment of the FIR is concerned, learned Additional Prosecutor General in view of dicta laid down in the case of Muhammad Nadeem alias Deemi v. The State reported in 2011 SCMR 827 and Mukhtiar Ahmed v. The State and others (2016 SCMR 2064) submits that such grounds are not available to the applicants/accused. He therefore, opposed the bail application.

6. Learned counsel for complainant submits copies of Medico-legal certificate in favour of injured Daran Khan, Zaib-ul-Nisa, Mukhtiar and Rabiat along with objections over the bail application and submits that accused are nominated in the FIR hence, they are not entitled for bail. In support of his contentions, he relied upon case of Khalil Ahmed Soomro and 3 others v. The State (2019 P.Cr.LJ Note 109).

7. Heard arguments of learned Counsel for the parties and perused the record meticulously.

8. Admittedly, the incident as shown had occurred on 06.11.2020 whereas report thereof was lodged on 11.08.2021 i.e. delay of about more than Nine months; however, complainant has not furnished any plausible explanation for such an inordinate delay. The delay in criminal cases has always been held by the Superior Courts to be fatal for the prosecution. As far as role attributed to applicants is the accused Talib Hussain was having gun and he allegedly instigated others; however, he did not use the weapon he was having. The role attributed to applicant Abdul Karim, he was having hatchet hi his hand and he caused such injury to complainant on his head; however, the injury allegedly sustained by the complainant was declared by the Medico-legal Officer to be punishable under section 337-A(i), P.P.C. which is bailable. The role attributed against accused Muzamil is that he was having lathi in his hand and caused lathi blow to PW Mukhtiarkar and injury allegedly sustained by injured was declared by the Medico-legal Officer to be fallen under section 337-L(2), P.P.C. which too is bailable. As far as sections 506/2 and 452, P.P.C. are concerned, the same are yet to be established by the prosecution after recording evidence of the parties as parties are already on strained relations over matrimonial dispute therefore, mala fide on the part of prosecution cannot be ruled out. In my view, the basic ingredients for grant of bail as enshrined by the Honourable Supreme Court in case of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 Supreme Court 427) are very much attracted hence, applicants are entitled for extra ordinary relief in shape of Anticipatory bail.

9. As far contentions of learned Assistant Prosecutor General to the effect that delay in lodgment of FIR was explained and law relied upon by him has no relevancy with the facts and circumstances of present case, therefore, arguments advanced by learned Assistant P.G has no force. As far as learned counsel for complainant places reliance upon case of Khalil Ahmed Soomro (Supra) is concerned, it was not approved by the Honourable Supreme Court of Pakistan. As far as nature of injury as well as allegations of instant case, I am fortified with the view/dicta laid down by the Honourable Supreme Court of Pakistan in the case of Khalil Ahmed Soomro and others v. The State (PLD 2017 SC 730) and is of opinion that case against applicants require further inquiry. Moreover, parties are on strained relations to each other therefore, false implication of accused out of mala fide cannot be ruled out. In the circumstances reliance can be placed upon case of Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733).

10. The upshot of above discussion is that the applicants have successfully made out a good prima fade case for further inquiry within meaning of subsection (2) of section 497, Cr.P.C. Accordingly, instant bail application is hereby allowed. The interim pre-arrest bail already granted to applicants vide order dated 29.09.2021 is hereby confirmed on same terms and conditions. The applicants present are directed to continue their appearance before trial Court, till final decision of main case.

11. Needless to mention here that observation made herein above are tentative in nature and trial Court may not be influenced of the same and decide the case on its own merits as per evidence and the material made available before it. (Bail application stands disposed of in the above terms. SA/T-10/Sindh Bail confirmed.