Ali Gohar Gopang and another vs The State
This is a criminal bail application wherein the applicants sought pre-arrest bail in FIR No. 57 of 2019 registered at Police Station Badeh under sections 337-A(i), 337-A(ii), 337-F(i), 452, 504, 148 and 149 of the Pakistan Penal Code 1860. The core legal questions involved whether the offences charged fell within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898, and whether malafide, delay in lodging the FIR, and previous hostility warranted the confirmation of pre-arrest bail. The Sindh High Court held that since the offences did not fall within the prohibitory clause of section 497, Cr.P.C., there was an unexplained delay of 25 days in lodging the FIR, and previous hostility existed between the parties, the applicants made out a case for anticipatory bail. The court laid down the principle that pre-arrest bail may be confirmed where the charged offenses do not fall within the prohibitory clause, and there is a reasonable possibility of false implication due to delay and prior enmity, provided the accused have not misused the concession of bail.
- Does an unexplained delay of 25 days in lodging an FIR support the grant of pre-arrest bail?
- Whether offences not falling within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 justify the confirmation of pre-arrest bail?
- Can previous hostility between parties be considered a ground for potential false implication when deciding a bail application?
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
KHADIM HUSSAIN M . SHAIKH, J. Through the captioned bail application, applicants Ali Gohar son of Raza Muhammad alias Shahnawaz Gopang and Imtiaz Ali alias Mitan son of Ali Gohar Gopang have sought pre-arrest bail in the case, emanating from FIR No.57 of 2019, registered at Police Station Badeh for offence under sections 337-A(i), 337-A(ii), 337-F(i), 452, 504, 148 and 149, P.P.C., after their plea for pre-arrest bail has been declined by the learned Additional Sessions Judge-IV, Larkana by dismissing their application vide Order dated 08.02.2020.
2. Learned advocate for the applicants has mainly contended that the applicants are innocent and they have been falsely implicated in this case by complainant Zamir Hussain Gadehi due to their previous hostility over a plot; that there is delay of 25 days in lodgment of the FIR without proper explanation thereof; that the offence with which the applicants are charged does not fall within prohibitory clause of section 497, Cr.P.C; that co-accused Aijaz Ali has already been enlarged on bail by the learned Trial Court vide order dated 23.12.2019, copy whereof is available at pages 25 to 27 as Annexure "D"; and, that the applicants, apprehending their arrest with ulterior motives at the hands of the police, have sought for pre-arrest bail. The learned counsel prays for confirmation of interim pre-arrest bail earlier granted to the applicants.
3. The learned. Additional Prosecutor General has frankly conceded to the confirmation of interim pre-arrest bail earlier granted to the B applicants, contending that the offence with the applicants are charged does not fall within the prohibitory clause of section 497, Cr.P.C., for, applicant Imtiaz Ali alias Mitan and co-accused Aijaz Ali are alleged to have caused one injury each to Mst. Rubina on her left shoulder and near left eye, which are certified to be Ghayr-jaifah damiyah, constituting offence under section 337-F, P.P.C and Shaja-i-Khafifah, constituting offence under section 337- A(i), P.P.C. carrying punishment upto one year and two years respectively and whereas applicant Ali Gohar is alleged to have caused injury to Farhan with back side hatchet near his right eye-brow, which is certified to be Shajja-i-mudihah, constituting offence under section 337-A(ii), P.P.C carrying punishment upto five years; that there is delay of 25 days in lodgment of the FIR without proper explanation thereof; and that injured Mst. Rubina had appeared before the Medical Officer on 27.10.2019 and whereas injured Farhan is shown to have appeared before the Medical Officer on 28.10.2019 without any reasonable explanation, and thus, per him, the possibility of false implication of the applicants in this case cannot be ruled out in view of the previous hostility between the parties, coupled with inordinate delay of 25 days in lodgment of the FIR. Under these circumstances, I am of the considered view that the applicants, who have since joined their trial and are not alleged to have misused the concession of interim pre-arrest bail, have made out their case for grant of anticipatory bail. Accordingly, this bail application is allowed and ad-interim pre- arrest bail earlier granted to the applicants vide order dated 03.03.2020 is hereby, confirmed on same terms and condition.
4. The observations made hereinabove are tentative in nature only for the purpose of deciding the instant bail application, which shall not, in any manner, influence the learned Trial Court at the time of final decision of the subject case.