ORDER-SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. S- 116 of 2018.
|
Date of hearing |
Order with signature of Judge |
20.04.2018.
1. For orders on office objections.
2. For hearing of bail application.
Mr. Abdul Hakeem Brohi, Advocate for applicant.
Mr. Sharafuddin Kanhar, A.P.G.
Amjad Ali Sahito, J- Through this bail application, applicant Hyder Bux son of Hussain Bux Mugheri seeks his admission to post-arrest bail in Crime No.99/2014 registered with Police Station Saddar, Kamber, for offences punishable under Sections 324, 337-H (2), 148 & 149 P.P.C.
2. The bail application moved by the applicant before the Court of learned Sessions Judge, Kamber-Shahdadkot @ Kamber, was declined by Order dated 24.02.2018.
3. The facts of the prosecution case are that on 09.05.2014 complainant Sikander Ali Mugheri lodged report with P.S Saddar, Kamber, which reads as under:
“It is compliant that, an old murderous enmity is going-on, in between us and Hyder Bux Mugheri and others. That, on 08.05.2014, I alongwith my brohter Ali Akbar and Moula Bux duly having our licensed weapons by boarding in Qingqi proceeded from our village to Sessions Court Kamber, as such at about 08.00 a.m. reached near Ghathar diversion, where we saw and identified accused Hyder Bux, 2. Umed Ali, 3. Shaman all three sons of Hussain Bux having guns, 4. Ali Muhammad, 5. Abbasi both sons of Naggar having repeater, 6. Deedar son of Ghous Bux with gun, 7. Ghulam Muhammad son of Jarro Khan armed with gun, all by caste Mugheri, resident of village Meenhoon Khan Leghari, Taluka Shahdadkot accompanying two unknown accused who had guns in their hands and could be recognized, if seen again. On seeing us, accused Hyder Bux and Umed Ali with intention to commit murder made direct fires, which hit my brother Ali Akbar and Moula Bux and they fell down from the Qingqi; as such I immediately got down from the Qingqi and by taking shelter in the side of inland-waterway made fires with my licensed gun upon them in my defence. On firearm reports, the villagers attracted there and on seeing them the accused persons by boarding on their motorcycles fled away towards western directions while making an aerial firing. Then, I saw my brothers; my brohter Ali Akbar was having firearm injuries on left arm, right and right leg, he was bleeding. My brohter Moula Bux was having injuries on left and right leg; he was bleeding. Then, with the help of villagers I brought my brothers to Taluka Hospital, Kamber for treatment, where from the doctors referred the injured to Larkana casualty. Since, the injured were in serious condition, therefore, I could not come at-once, but now I have come and report the matter that above accused persons with their common object due to old enmity duly armed with weapons by making an unlawful assembly made assault upon us by making direct fires upon my brothers Ali Akbar and Moula Bux and have injured them; so also have made aerial firing upon me. I am complainant; investigation may be made.”
4. Learned counsel for applicant mainly contended that, enmity between parties has been admitted by complainant in the F.I.R and in the background of such old murderous enmity false implication of the applicant in the instant case cannot be ruled out; that there are general allegations of making fires against two accused including present applicant and no specific injury has been assigned to him. Per learned counsel the injuries on the person of the injured are not on their vital parts of body. Learned counsel further contended that no repeatation of fires by any of the accused, therefore, there would be no application of Section 324 P.P.C. to the case of applicant. Learned counsel submitted that it is well settled principle of law, that mere absconsion would not come in the way of grant of bail, if otherwise the case is made out for bail. In this regard, the learned counsel placed his reliance upon case of Mitho Pitafi v. The State (2009 SCMR 299). Lastly, learned counsel submitted that the injuries on the person of injured do not fall within prohibitory clause of Section 497 Cr.P.C and it is well settled law by the Hon’ble Apex Court that in the cases which do not fall within prohibitory clause of Section 497 Cr.P.C, the grant of bail is rule and refusal is an exception. In support of his contention, learned counsel has relied upon case of Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733), Riaz Hussain and others versus The State and others (2014 YLR 1120 Lahore).
5. Learned A.P.G. appearing for the State opposed grant of bail in favor of the applicant on the ground that he has been nominated in F.I.R with specific role of making fires upon prosecution witnesses and that he has remained fugitive from law for several years.
6. Perusal of record reflects that, the parties are already inimical towards each other and that the injuries sustained by the injured persons are on their non-vital parts of body. Per medical certificates of both the injured, the injuries on their person have been declared as “Jurh Ghayr-Jaifah Damiyah, Munaqqillah and Hashimah”, respectively, falling under Sections 337-F (i), 337-F (vi) and 337-F (v) P.P.C, out of them Section 337-F (i) P.P.C carries punishment for one year; whereas punishment provided for Section 337-F (vi) P.P.C is upto the extent seven years, while Section 337-F (v) P.P.C carries punishment upto five years, as such these sections do not fall within prohibitory clause of Section 497 Cr.P.C. The case is already challaned and custody of the applicant is not required by police for the purpose of investigation. The offence with which the applicant has been charged does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C, hence the bail is rule and its refusal is an exception, as has held by the Hon’ble Apex Court in its numerous judgments and recently the Hon’ble Supreme Court of Pakistan in case of Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733), has observed as under:
“We are shocked and disturbed to observe that in cases of this nature, not falling within the prohibition contained in section 497, Cr.P.C., invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions. This phenomenon is growing tremendously, thus, cannot be lightly ignored as precious time of the Court is wasted in disposal of such petitions. This Court is purely a Constitutional Court to deal with intricate question of law and Constitution and to lay down guiding principle for the Courts of the country where law points require interpretation. That prisons were accommodating convicted and under-trial prisons more than double their capacity and State authorities were involved in transporting such prisoners from the prisons to the Court premises on daily basis for Court hearings which involved risks and extra expenditures from the public exchequer and that grant of bail in offences not falling within the prohibitory limb of S. 497, Cr.P.C. was a rule and refusal an exception, therefore, all subordinate Courts, Special Courts and Tribunals should follow said principle in its letter and spirit.”
8. So for as absconsion is concerned, the Honourable Supreme Court of Pakistan in the case of MITHO PITAFI versus THE State (2009 SCMR 299), has observed that bail could be granted, if the accused has good case for bail on merits and mere his absconsion would not come in the way while granting him bail. The applicant is in jail for last two months but no progress in the case has been made before the trial Court.
9. Accordingly, in view of above position and dictum laid down by Hon’ble Supreme Court in case Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733) and MITHO PITAFI versus THE State (2009 SCMR 299), the instant application stands allowed. Consequently, applicant Hyder Bux Mugheri is granted post arrest bail upon his furnishing solvent surety in the sum of Rs.100,000/- (One hundred thousand) and P.R bond in the like amount to the satisfaction of trial Court.
JUDGE
Ansari/*