AHMED ALI vs STATE

ORDER

1. The relevant facts for the purpose of this bail application are that complainant Hubdar Ali, brother of the wife of applicant Ahmed Ali, lodged F.I.R. Bearing No. 44 of 2005 at Police Station Dari, Larkana on 14-6-2005, alleging that on account of altercation between him and his in-laws, his brother-in- law (wife's brother) caused knife injuries to him. The F.I.R. was recorded for the commission of offences punishable under Sections 337-F(ii), 504 and 34, P.P.C.

2. 'The complainant was not satisfied with the contents of F.I.R. and, therefore, he filed a direct complaint, which was entertained by the learned VI Additional Sessions Judge, Larkana. Section 324, P.P.C. was added to the sections of P.P.C., shown in the F.I.R. It was stated in the complaint that police has not recorded the correct facts in the F.I.R. It was alleged that offence under Section 324, P.P.C. was committed. The learned VI-Additional Sessions' Judge held preliminary enquiry under Section 202, Cr.P.C. and thereafter came to the conclusion that a prima facie case has been made out against accused/applicant Ahmed Ali and his mother Mst. Aalman. He, therefore, issued bailable warrants against the applicant and his mother in the sum of Rs. 20,000.

3. The applicant furnished surety and is on bail in the complaint case.

4. The State case, which was being tried by learned Civil Judge and Judicial Magistrate-Ill, Larkana, was also transferred to the Sessions Court and now the State case as well as direct complaint are pending before the learned VI-Additional Sessions Judge, Larkana. As already observed the applicant is on bail in the direct complaint, wherein commission of an offence under Section 324, P.P.C. is alleged against the applicant, while he is in custody in State case in which the commission of an offence punishable under Sections 337-F(ii), 504 and 34, P.P.C. are alleged. The learned VI- Additional Sessions Judge, Larkana has rejected the bail application and consequently the applicant has approached this Court.'

5. 'The learned Advocates for the parties have argued the case on the basis of allegations in the F.I.R.

6. The learned counsel for the applicant has vehemently assailed the observation of the learned Additional Sessions Judge that remaining of applicant on bail in direct complaint is immaterial. He has further assailed the observation of the learned trial Court whiCh prevailed for the rejection of bail application on the ground that provision of Section 324, P.P.C. is attracted. The learned counsel has contended that this point was considered by the same Court while issuing process against the applicant on the direct complaint and it was not deemed fit to issue nonjbailable warrant against the applicant for the commission of offence under Section 324, P.P.C., with the result, that there are two contradictory findings of the same Court. The order on direct complaint was passed by predecessor of the present Presiding Officer but it is immaterial because the Court, is same.

7. 'The learned State counsel has opposed the grant of bail, on the ground that there is specific allegation of causing knife injury to the complainant.

8. 'After considering the facts on record I am of the opinion that the learned trial Court and the learned Advocates have missed the point which was required to be considered. The settled law is that if a person lodges an F.I.R. and is not satisfied with the contents of F.I.R. or the investigation, he is at liberty to file direct complaint, and if process is issued in the direct -complaint, then the State case is to be kept in abeyance and the direct complaint shall proceed. The State case shall be disposed of in terms of the decision on the direct complaint. Applying the above prinCiples in the above case, the State case is required to be kept in abeyance and the direct complaint must proceed. The admitted fact is that the case is one. However, there are two proceedings, one in State case and other on direct complaint The applicant is on bail in the proceedings initiated on direct complaint as the then learned VI-Additional Sessions Judge Larkana deemed it fit to issue bailable warrants and no non-bailable warrants Was issued.

9. 'I am persuaded to agree with the contention of learned counsel for the applicant that the learned trial Court has blown hot and cold at the same time The accused is on bail in the direct complaint, wherein commission of offence under Section 324, P.P.C. is alleged, while on the same set of facts bail has been declined to him in the State case, where commission of offence under Section 324, P.P.C. is not alleged, on the ground that Section 324, P.P.C. is attracted.

10. 'The learned State counsel is not able to reconcile the two orders passed by the same Court, one on the direct complaint and the other in the State case.

11. 'In the facts and circumstances of the case as narrated above, I am of the .opinion that since the applicant is on bail in the direct complaint, which has to proceed, there is no justification for declining bail to the applicant in a case which is to be kept in abeyance. The applicant is, therefore, granted bail in the sum of Rs. 50,000 on furnishing one surety and execution P.R. bond in the like amount to the satisfaction of learned trial Court.

12. 'Before parting with this order I would like to direct the learned trial Court to keep the State case in abeyance and proceed with the direct complaint.