ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No. 1786 / 2016
For Hearing of bail application.
Mr. Abdul Haleem Jamali, advocate for the applicant.
Mr. Fida Muhammad Khan, advocate for complainant.
Mr. Zahoor Shah, A.P.G. for State.
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1. Through instant application, applicant seeks pre-arrest bail in Crime No. 66 of 2016 PS Memon Goth u/s. 337-F(vi), 337-A(i), 504 PPC and was admitted to interim pre-arrest bail vide order dated 14.12.2016.
2. It is alleged that the applicant alongwith rest attacked upon complainant’s younger brother Arshad aged about 9/10 years and caused injuries to him for which, present case was registered.
3. Mr. Abdul Haleem, learned counsel for the applicant has argued that the applicant has been falsely implicated in the present case by the complainant; that there are general allegations for causing dandas, fists and kicks blow to PW Arshad; that the injury alleged to have been caused is punishable upto seven years and has not been specifically attributed to the present applicant; that the co-accused namely: Nawab and Hakim Ali have already been admitted to pre-arrest bail by the learned II-Additional Sessions Judge, Malir, Karachi; that the case of the present applicant is identical with the case of co-accused Nawab and Hakim Ali, who have already been admitted to pre-arrest bail and rule of consistency is fully applicable in the present case; that the applicant has been falsely implicated due to enmity as he is witness in FIR bearing Crime No. 120/2014 PS B-Section Shaheed Benazirabad, in which father of present complainant is accused for committing murder of his real daughter; that the complainant involved the present applicant in the case in hand in order to pressurize him not to give evidence against his father in the murder case; that the injuries on the person of injured person have been declared as ghayr-jaifah munaqqillah and shajjah-i-khafifah, which are punishable upto 7 years and 2 years respectively and do not fall within the prohibitory clause of Section 497, Cr.P.C.
4. On the other hand, Mr. Fida Muhammad Khan, learned counsel for complainant opposed the bail plea of applicant on the ground that specific role has been assigned to present applicant for causing danda blow to injured Arshad. The learned State Counsel also opposed the bail plea of applicant.
5. From the perusal of record it contemplates that there is enmity between the parties. There are general allegations against the present applicant and co-accused for causing injuries with danda, fists and kicks. No specific injury has been assigned to any of the accused. As per Medical Certificate the injuries sustained by the injured P.W-Arshad are falling under section 337-A(i) and 337-F(vi) PPC, which are punishable upto 2 years and 7 years respectively, hence do not fall within the ambit of prohibitory clause of Section 497, Cr.P.C. More-so, it is to be determined at trial that who caused injury which is punishable under Section 337-F(vi) PPC. The case of applicant is on similar footings with the case of co-accused and rule of consistency is applicable in the present case.
6. In case reported as Jaffar and others vs. The State (1980 SCMR 784), wherein the Honourable Supreme Court has observed as under:-
“It could not be said as to who caused the fatal injury which left room for consideration as to the common intention of the others to kill the deceased and, therefore, it was a case of further inquiry u/s 497(2), Cr.P.C. The learned Additional Advocate General appeared to oppose the bail but after examining the material we were of the view that it was case of further enquiry. Accordingly, we converted the petition into an appeal and allowed bail to the petitioners”.
7. In case reported as Muhammad Ramzan vs. Zafarullah and another the Hon’ble Supreme Court has been please to observed that :-
“After hearing the learned counsel we fell that prima-facie, at this stage, the case of petitioner is not distinguishable from that of others to whom bail has been allowed. No useful purpose would be served if the bail of Zafarullah Khan, respondent is cancelled on any technical ground because after arrest he would again be allowed bail on the ground that similarly placed other accused are already on bail. We, therefore, in the circumstances of the case, do not consider it a fit case for grant of leave to appeal. This petition accordingly, is dismissed.
8. In view of foregoing reasons and circumstances, interim pre-arrest bail already granted to the applicant by this Court is confirmed on same terms and conditions.
9. Needless to mention here that observations made hereinabove are tentative in nature and the trial Court while deciding the case on merits shall not be influenced upon by the said observations.
These are the reasons of short order dated 01.03.2017.
JUDGE
Karachi.
Dated: 06 March 2017