2014 PLP 2128 (YLR)

SHAUKAT ALI MEMON, J.

Applicant Sikandar seeks post-arrest bail in Crime No.90/2011, registered under sections 147, 148, 149, 337-A(iii), 337-A(i), 337-F(i), 114, 504 P.P.C. at Police Station Tando Ghulam Hyder on 30-6-2011. Earlier bail applications moved on behalf of the applicant before the Court of Judicial Magistrate-II, Tando Muhammad Khan as well as before the Sessions Judge, were rejected. The grounds for rejection; weighed with the Court of Session, were that offence fell within the prohibitory clause of section 497, Cr.P.C. and that rule of consistency on account of grant of bail to co-accused Abdullah was not attracted, as at the time of commission of the alleged crime, he was empty handed while the applicant not only was named in the F.I.R., but specific role has also been assigned to him of causing lathi blow to the complainant's uncle, namely, Saleh.

2. The applicant on 4-5-2011 at 1100 hours along with accused Dadoo, Alloodo, Sheroo and Abdullah stated to have attacked upon the complainant party, as they had restrained and objected them from throwing the cow dung in front of their house. Accused Dadoo and Alloodo were armed with hatchets, Sheroo with iron rod, Abdullah was empty handed while the present applicant was armed with lathi, of whom accused Abdullah instigated the others as such accused Dadoo inflicted backside hatchet blow to P.W. Ayub, Alloodo gave straight blow to P.W. Saleh on his head, Sheroo gave iron blow to complainant Akber while applicant Sikandar inflicted lathi blow to Saleh. On cries and intervention of one Hussain Bux the complainant party was rescued where-after, they got treatment at Government Hospital, Tando Ghulam Hyder after getting letter from police, where injuries on person of P.W. Saleh were certified falling under section 337-A(iii), P.P.C., thus on approach of the complainant, the F.I.R. was registered as above culminating into submission of report in terms of section 173, Cr.P.C.

3. The instant application is moved almost on same grounds pleaded and agitated before the Court of Session except rule of consistency.

4. It is argued that there is delay of about two months without plausible explanation in lodging of the F.I.R., as such prosecution case is doubtful having been registered after consultation and deliberation on account of admitted enmity, thus, according to learned counsel the case is of further enquiry. It is next contended that except section 337-A(iii), P.P.C., all the sections are bailable, which provides maximum punishment of ten years, thus, same does not fall within prohibitory clause and grant of bail in like cases is a rule while refusal is an exception. In support authority 2005 PCr.LJ 596 is relied upon.

5. Conversely, learned A.P.G. opposed the bail application, submitting that delay in lodging of the, F.I.R. is fully explained, as the complainant party instantly approached the police station for letter for medical treatment and certificate, which was finally issued on 29-6-2011, while the F.I.R. lodged on 30-6-2011 is without any delay. The contention of learned counsel for the applicant that alleged offence does not fall within the prohibitory clause of section 497 Cr.P.C. is refuted by submission that it carries punishment upto 10 years, thus falls within prohibitory clause. Lastly, it is contented that the applicant is assigned specific role of causing lathi injury to P.W. Saleh, which is reflected from the contents of the medical certificate showing weapon used as hard and blunt substance.

6. The perusal of medical certificate, F.I.R. and the statements of P.Ws. covers delay in lodging of the F.I.R. and it prima facie reflects involvement of the present applicant in commission of a non-bailable offence falling within prohibitory clause. No case of bail is made out, as such application is dismissed. MWA/S-41/Sindh Bail refused.