2017 PLP 116 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post arrest bail application, applicant Imran Azher has impugned order dated 13.04.2016, whereby his earlier bail application was declined by the Court of learned I-Additional Sessions Judge, Malir Karachi.

2. Necessary facts narrated in FIR are that complainant was married with applicant on 15.03.2006 and out of their wedlock four children have been born. On 22.03.2016, at about 2330 hours, while complainant was sleeping in her room, Mst. Rasheeda, wife of applicant's elder brother, having illicit relations with applicant, and on her instigation applicant pronounced her divorce and caused her kicks blows and tried to kill her by throttling with both hands upon which her elder son raised hue and cry. Applicant caused Bellan blows and she sustained injury on her left hand. Complainant left house of the applicant and started residing under the roof of her parents, hence this FIR.

3. Learned Counsel for applicant contended that complainant lodged FIR with unexplained delay of 8 days and per medical certificate injuries caused to her are punishable for 5 years which does not fall within prohibitory clause of section 497, Cr.P.C. that applicant is not previously convicted and even he is no more required for investigation to the police.

4. Learned APG while controverting the above submissions, opposed the plea of bail agitated by learned counsel for applicant, however, he contended that alleged offence is punishable up to five years.

5. Heard arguments advanced by learned counsel for the parties and perused the material available on record, which emanates that complainant was married with applicant about 10 years ago and four children have been born out from their wedlock, but domestic atmosphere was not cordial as complainant was suspecting the applicant having his illicit relations with Mst. Rasheeda wife his elder brother and residing in same house. It is significant to mention that alleged incident was also result of exchange of hot words relating to same allegations. Admittedly, that the incident occurred on 22.03.2016 at 2330 hours, while FIR was lodged on 30.03.2013 at 0030 hours but no plausible explanation has been furnished regarding lodgment of FIR with the delay of 8 days. Per medical report four injuries were sustained by complainant, out of which injuries Nos.2 and 3 were declared as null and void, while injury No.1 is punishable for Shajjah-i-Hashimah, which is punishable up to 5 years and injury No.4 is punishable for Shajjah-i-damighah, which is punishable for one year, thus the alleged offence does not fall within the ambit of restraining clause of section 497, Cr.P.C. and in such nature cases bail should be granted as a matter of right. No material strengthening the allegations for attempt to commit murder of complainant has been collected by Investigating Officer, thus it is for learned trial Court to record evidence of prosecution witnesses to ascertain such allegation. Moreso, investigation has been completed and applicant is no more required further to police and after framing of charge prosecution has failed to examine even a single witness to substantiate the charge, hence further detention of applicant will not serve any useful purpose.

6. For the foregoing discussion of the facts and circumstances, applicant has succeeded to make out his case for grant of bail on the ground of further inquiry as envisaged under section 497(2), Cr.P.C. Consequently, applicant is admitted to post-arrest bail subject to furnishing solvent surety in the sum of Rs.100,000/- (Rupees One Lac) and PR bond in the like amount to the satisfaction of learned trial Court. The observations made above are tentative in nature and trial Court shall decide the subject case strictly on its merits. WA/I-35/Sindh Bail granted.