2020 PLP 66 (YLRN)

KHADIM HUSSAIN TUNIO, J.

Through above captioned bail application, applicants Haleem Rajar, Ali Hassan, Allahdad, Rehman and Momin have sought their admission on pre-arrest bail in Crime No.23 of 2019, registered at Police Station Chotiyaroon for offences under Sections 324, 337-A(i), 337-F(i), 504, 147, 148, 149, P.P.C.

2. It is alleged that on 02.12.2019, applicants / accused along with rest formed an unlawful assembly and in prosecution of their common object of such assembly they caused lathi and hatchet blows to complainant's sons, namely Sahib, Soomar and Khairoo, for which subject FIR was lodged.

3. Learned Counsel for the applicants has contended that applicants/ accused are innocent and they have falsely been involved in this case; that there is no reasonable ground to believe that applicants are guilty of the alleged offences; that FIR has been lodged with delay of six hours and no plausible explanation has been furnished by the complainant; that on the day of incident the complainant party attacked upon the accused party and such FIR was lodged against the complainant party; that there are counter cases of the alleged incident; as such, it is yet to be determined that who is aggressor; that in counter case the complainant party has already been granted post arrest bail; as such, the applicants are also liable to be admitted on bail as they have also received injuries on their person; that case has been challaned and the applicants are no more required by the police for any investigation. Lastly, learned Counsel has prayed for admitting the applicants on bail by relying upon the cases of Hamza Ali Hamza and others v. The State (2010 SCMR 1219) and Muhammad Shahzad Siddique v. The State and another (PLD 2009 Supreme Court 58).

4. Learned D.P.G assisted by the learned Counsel for the complainant has vehemently opposed the grant of bail to the applicants while admitting that applicants are nominated in the FIR and they have been assigned specific roles by the complainant; hence; they does not deserve for concession of bail.

5. I have considered the submission made by the learned Counsel for the respective parties as well as learned D.P.G and have perused the material available on record with their assistance.

6. It is an admitted fact that the names of the applicants / accused are shown in the FIR. It is also an admitted position that there is more than nine hours delay in lodging of the FIR as it was lodged on 02.12.2019 at 1830 hours, while incident took place on 02.12.2019 at 0900 hours despite the distance between Police Station and the place of occurrence is 3/4 kilometers; hence; due deliberation and consultation on part of the complainant in lodging of FIR cannot be ruled out. The injuries alleged to have caused by the applicants / accused to the complainant party are bailable except the injury received by injured Soomar being imputation of thumb; however, the said injury has not been disclosed in the FIR by the complainant. The complainant has also alleged in the FIR that applicant / accused Haleem Rajar caused hatchet injury on the head of his son Sahib, but surprisingly the said injury has not been certified by the Medical Officer while issuing Medical Certificate. It appears that both the parties have registered counter cases; however, the complainant party has already been admitted on post arrest bail by the trial Court in counter case bearing FIR No.24 of 2019, while bail plea of the applicants / accused has been refused despite the fact that this is the case of two versions and it is yet to be determined at the trial that which party is aggressor and which party is aggressed upon. Moreso, both the parties have suppressed the injuries received by the either party in their respective FIRs. In this respect, learned Counsel has rightly relied upon the cases of Hamza Ali Hamza and others v. The State and Muhammad Shahzad Siddique v. The State and another (supra). Moreover, the injuries as mentioned in the FIR provides punishment upto two years; hence, does not fall within the prohibitory clause of Section 497, Cr.P.C. Under these circumstances, the case of the applicants / accused is on the footings being one of further inquiry in terms of Section 497(2), Cr.P.C. The challan against the accused has been filed and the applicants are no more required for investigation. No purpose would be served if the applicants are refused to be admitted on anticipatory bail and in case of refusal they will ultimately be admitted to post arrest bail after their arrest. Reliance can also be placed upon the cases of Muhammad Ramzan v. Zafarullah and another (1986 SCMR 1380) and Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733).

7. In view of the above, applicants / accused have made out their case for concession of extraordinary relief of pre-arrest bail, hence, interim pre-arrest bail already granted to them, vide order dated 09.01.2020 was confirmed on the same terms and conditions vide short order dated 27.01.2020; however, with direction to the learned trial Court to proceed with the case expeditiously and decide the same preferably within a period of 06(six) months with intimation to this Court.

8. Needless to mention here that the observations made hereinabove are tentative in nature and shall not in any way affect the merits of the case of either party at the trial or influence the trial Court at the time of deciding the case. ADN/H-8/Sindh Bail confirmed.