2015 PLP 896 (YLR)

SALAHUDDIN PANHWAR, J.

By dint of this order, I intend to dispose of captioned bail applications, whereby the applicants Muhammad Rafique and Ghulam Hussain seek pre-arrest bail and applicants Muhammad Usman and Ameer Bux seek post arrest bail in Crime No.42/2013 registered at Police Station Bulri Shah Karim under sections 324, 337-H(1), 337(vi), P.P.C. and section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979.

2. Precisely relevant facts are that applicants with their common intention, duly armed with pistols and hatchets, robbed cash amount of Rs.3000 Rs.1200 and one mobile phone of Nokia company from the complainant party. Applicant Rafique Ahmed caused firearm injuries to P.W. Mehboob which received on his hand. After usual investigation, applicants were sent up for trial. Applicants Muhammad Rafique and Ghulam Hussain directly approached this Court and sought interim pre-arrest bail vide order dated 12-3-2014.

3. Learned counsel for the applicants inter alia contends that in fact applicants have been booked at the instance of one Syed Shahjehan Shah and his family members as the complainant is their Kamdar which is evident in Crime No.19/2013; there is also civil litigation as said Shahjehan Shah has filed F.C. Suit No.39/2013 wherein all these applicants are defendants and same is with regard to declaration and permanent injunction, therefore, enmity is admitted and story of instant case is cooked by complainant party; maximum punishment is 07 years which does not fall within the prohibitory clause and injuries, as allegedly caused to Mehboob, are not on vital part of the body; FIR is delayed about two and half months, no plausible explanation is furnished thus the matter requires further inquiry.

4. Conversely, Mr. Shahid Shaikh, learned A.P.G. assisted by complainant has contended that names of applicants transpire in the FIR with specific role; applicant Rafique Ahmed has criminal history of cases relating to robbery; civil suit appended by the applicants has no nexus with the instant application. In support of their contentions, case-law 1995 SCMR 1765, 2011 YLR 601 is relied.

5. After careful consideration of contentions raised by respective counsel for the parties and meticulous examination of available record, it reflects that it is the matter of record that FIR is delayed about two and half months and explanation for such delay is claimed to be that they were approaching their Nekmards for Faisla but their Nekmard Umer Samepoto asked them that accused are not ready to settle their dispute with them thereby they lodged FIR. I am in agreement with the contention of learned counsel for complainant that delay in FIR itself is not sufficient ground to release the applicants/accused on bail but the very case-law, relied by the learned counsel i.e. 1995 SCMR 1765 (supra), is not supporting such stand because it is categorically held therein that delay in FIR can be considered other coupled with other material available on record. Here it is worth to mention here that alleged robbery is Rs.3000, Rs.1200 and one mobile phone, therefore such amount if distributed between the accused persons cannot cross the limit of Nisab hence makes the applicability of such section open to further probe; the applicability of section 17, relating to Harrabah, is also open to further probe with reference to section 7 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 which demands two independent witnesses other than victim. Further perusal of record reveals that there is dispute of civil nature between one Syed party and accused persons hence the plea of the applicants/accused, being roped in result of such annoyance/enmity, cannot be brushed aside as a whole particularly in view of inordinate delay in reporting the matter.

6. Keeping in view the given circumstances of the instant case, I am of the prima facie opinion that instant case requires further probe. Consequently, applicants Muhammad Usman and Ameer Bux are admitted to post arrest bail subject to their furnishing solvent surety in the sum of Rs.50,000 (Fifty thousand) each and P.R. Bonds in the like amount to the satisfaction of the trial Court. With regard to applicants Muhammad Rafique and Ghulam Hussain who are admitted to interim pre-arrest bail on their direct approach to this Court. The alleged injury, sustained by Mehboob, does not fall within the prohibitory clause and the same is not on vital part. Their case is also similar to other accused/applicants, therefore, it would not be in the interest of justice to order the applicants/accused to move bail plea before concerned Sessions Court when they, otherwise, have made out a case for grant of bail because it is settled law in view of the case of Rais Wazir Ahmad v. The State reported in 2004 SCMR 1167, it is held that "If, however, such an application has been moved before the High Court and it has entertained the same and granted ad interim bail to the applicant, then instead of dismissing same on technical grounds it should dispose it of on merits." Accordingly, interim pre-arrest bail, already granted to applicants Muhammad Rafique and Ghulam Hussain, is hereby confirmed on same terms and conditions.

6. The captioned Criminal Bail Applications stand disposed of. ARK/M-137/Sindh Bail Applications allowed.