ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No. 04 of 2009.   

 

Date

Order with signature of Judge

 

For hearing

20.03.2009.

                        Mr. Muhammad Saleem G.N. Jessar, Advocate for applicant.

                        Mr. Muhammad Akram Shaikh, State counsel.

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                        Applicant has approached this court for grant of bail in crime No. 28/2007, registered with P.S Aqil, under section 324, 337-H (2), 148, 149 P.P.C, challenging the order dated 27.11.2008, passed by learned 2nd Additional Sessions Judge, Larkana, in Sessions case No. 478/2007, whereby his bail application was declined.

 

                        Facts of the case are that on 04.9.2007, complainant Jamaludin Jatoi lodged report with P.S Aqil, alleging therein that he owns an agricultural land which is situated in deh Jeeindo Jatoi, in which Guava orchard is in existence. On the fateful day complainant, his son Khalid Hussain and maternal cousin Asif Ali went to their said land to plough it through tractor. The tractor was ploughing when at about 1100 hours accused Qaisro alias Ghous Bux having gun, Mirch alias Ghulam Ali armed with kalashnikov, Shoukat duly armed with gun, Mubeen having rifle, Insaaf with repeater, Ayaz alias Nek Mohammad with gun, Mahbub alias Fida Hussain armed with kalashnikov came there, out of them, accused Mirch alias Ghulam Ali accosted and said to get away tractor and by saying so, he straightly fired with his kalashnikov upon complainant party with intention to commit their murder, which hit son of complainant, namely, Khalid Hussain on his left leg, who fell down  by raising cry. Then the culprits made their escape good by making aerial firing. The complainant then shifted inured to police station and lodged report to the above effect.

 

                        Learned counsel for applicant has contended that there is delay of 21-days in recoding of 161 Cr.P.C statements of prosecution witnesses. He further contended that as per final medico legal certificate, which is based on the report of radiologist, the injury on the person of injured has been declared as Jurh Ghayr Jaifah Hashimiyah, which falls under the purview of section 337-F (v) P.P.C and carried maximum punishment upto five years and do not exceed the limit of prohibitory clause of section 497 subsection (2) Cr.P.C.  He further contended that there is enmity between the applicant and the complainant party.  Learned counsel for applicant has relied upon case of Umar Hayat v. The State (2008 SCMR 1621), Ghulam Abbas v. The State (2006 MLD 596), and case of Master Dur Mohammad and 2 others v. The State (1994 P.Cr.L.J 1769-Karachi).

 

                        Learned State counsel has conceded for grant of bail to the applicant.

 

                        Injured has sustained one injury on non vital part of his body with pistol; no recovery has been effected from the applicant during investigation of the alleged crime weapon. Only one injury has been attributed to the applicant, which hit on the left leg of the injured, as said injury fall within the ambit of section 337-F (v) P.P.C.  Moreover,                 co-accused Mahbub alias Fida Hussain has been granted bail by trial court.

 

                        In case of Umar Hayat v. The State (2008 SCMR 1621), it has been held that accused had allegedly fired 4/5 shots from his pistol on complainant, out of them one fire hit on his left knee. Said injury fell  within the ambit of section 337-F (v) P.P.C. Accused had rightly been granted bail by trial court and high court while canceling the same had failed to observe whether bail grant order was arbitrary, capricious or fanciful. Petition for leave to appeal was converted into appeal and allowed and accused was granted bail in the circumstances.

 

                        In the case of Ghulam Abbas v. The State (2006 MLD 596), it has been held that the medical evidence was in conflict with ocular evidence. Victim had sustained injury on non vital part of his body and subsequently expired. Bail could not be refused as a punishment merely on the allegation of the accused having committed an offence punishable with death or imprisonment for life, unless his complicity therein was disclosed by reasonable grounds. Medical evidence showed that the deceased had not expired due to firing. Contents of the F.I.R implicating the accused in the offence, thus, required further inquiry. Placing of the names of the two co-accused in column No. 2 of the challan ho were allegedly holding pistols in their hands, had further created doubts about prosecution story, benefit of which would go to accused. Accused was admitted to bail in circumstances.

 

                        In case of Master Dur Mohammad and 2 others v. The State (1994 P.Cr.L.J 1769-Karachi), it has been held that, all the gunshot injuries sustained by the complainant were on non vital parts of his body like arms, legs and feet. Interim pre arrest bail earlier granted to accused was confirmed in circumstances.

 

 

                        Keeping in view the above facts and the case law referred by learned counsel for the applicant and the case law reported in PLD 1995 S.C 34, whereby it has been held that bail is rule in cases not punishable with death, imprisonment for life or with ten years is rule and refusal is an exception; I grant bail to applicant on his furnishing solvent surety in the sum of Rs.100,000/- (One lac) and P.R bond in the like amount to the satisfaction of trial court.

 

                        The observations made hereinabove are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial court which is free to appraise the evidence strictly according to merits of the case.

 

 

                                                                                                                        Judge