IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Bail Appln. No. S – 606 of 2018

Applicants: Samiullah S/o Shafqatullah Shaikh

Asif Nisar S/o Nisar Ahmed Shaikh

through Mian Mumtaz Rabbani, Advocate

Complainant: Zafar Hussain Charan through

Mr. Imtiaz Ahmed Kolachi, Advocate

Respondent: The State, through

Mr. Shafi Muhammad Mahar, Deputy Prosecutor General

Date of hearing: 17.12.2018

Date of order: 17.12.2018

O R D E R

Amjad Ali Sahito, J- Though instant bail application, the applicants have sought pre-arrest bail in Crime No.154 of 2018 registered at Police Station Ubauro, District Ghotki for offences punishable under Sections 324 and 34 PPC, whereby the applicants/accused have challenged their bail rejection order dated 09.10.2018 passed by learned Additional Sessions Judge Ubauro.

2. Precisely stated facts as per FIR registered on 28.09.2018 by one Zafar Hussain Charan at Police Station Ubauro, are that sometimes prior to this incident, his maternal-nephew Zeeshan had contracted love marriage with sister of Samiullah Shaikh at Sadiqabad Court, on which accused Samiullah was annoyed and was asking the complainant party for return of the girl, having declared the couple as Siyahkar. On 26.9.2018, in the evening the complainant along with his son Afaq Ali, nephew Khadim Hussain and relative Imran Khan were going to Mehdi Masjid for offering Maghrib prayers, when at about 6:35 p.m, they reached in Charan Muhalla, where all of a sudden there came on one motorcycle accused Samiullah, Asif Nisar, having pistols and one unknown person. Out of them, accused Samiullah Shaikh gave hakal and said that today you would be taught a lesson because you are helping Zeeshan Abid. On saying so, accused Samiullah with intention of murder fired upon Afaq Ali, which hit on his right knee blow, whereas, accused Asif Nisar also made fire upon Afaq Ali which too hit on his right leg thigh, who cried and fell-down on the ground. On the cries and firearm reports, the neighbours came there, as such the accused persons escaped away. Thereafter, the injured was immediately brought at Taluka Hospital Ubauro from where he was referred to Rahimyar Khan due to his serious condition and ultimately the complainant went to Police Station and lodged the FIR.

3. Mian Mumtaz Rabbani, learned counsel for the applicants/accused, inter-alia, contended that the applicants/accused are innocent and have falsely been implicated in this case; that there is delay of 02 days in lodgment of the FIR for which no plausible explanation has been furnished by the complainant; that no specific role has been assigned to any of the accused persons to believe that they have committed the alleged offence; that if the applicants/accused would have any intention to kill injured Afaq Ali, no one was present there to restrain them from doing so; that there is dispute between the parties over the landed property, hence the false implication of the applicants/accused cannot be ruled out; that the offence with which the applicants have been charged does not come within the ambit of prohibitory clause; that further investigation conducted by one Inspector Ghulam Ali Jumani who has recommended for disposal of the case under ‘B’ class. He lastly prayed for confirmation of the interim pre-arrest bail to the applicants/accused on same terms and conditions.

4. On the other hand, Mr. Imtiaz Ahmed Kolachi, learned counsel for the complainant as well as learned DPG for the State have vehemently opposed for grant of pre-arrest bail to the applicants/accused on the ground that the delay in lodgment of the FIR has been properly explained by the complainant; that the names of the applicants/accused are nominated in the FIR with specific role of making direct fires upon injured Afaq Ali; that the ocular version as setout in the FIR is fully supported by the medical report. Lastly they prayed for recalling the interim pre-arrest bail earlier granted to the applicants/accused. Learned counsel for the complainant in support of his contentions relied upon the cases of Ch. Waris Ali v. The State (2007 SCMR 1607) and Rajo Khan and 3 others v. The State (2010 P Cr. L J 452) [Karachi].

5. I have considered the submissions of learned counsel for the parties and have gone through the material available on record. It is an admitted position that the names of both the applicants/accused transpired in the FIR with specific role of making direct pistol shots upon injured Afaq Ali on a petty matter. The ocular version as setout in the FIR is fully supported by the medical evidence as well as P.Ws in their 161 Cr.P.C statements. Furthermore, the delay in lodgment of the FIR has been properly explained by the complainant because after the incident he took the injured to Taluka Hospital Ubauro, from where the injured was referred to Rahimyar Khan for further treatment. It is a well-settled principle of law that at bail stage only tentative assessment can be made, whereas, the applicants/accused have not pleaded any mala fides on the part of the complainant for falsely implicating them in the present case. In view of the above, learned counsel for the applicants/accused has failed to make-out any case for grant of pre-arrest bail to the applicants Samiullah and Asif Nisar. The applicants/accused have been charged for an offence under Section 324 PPC which falls within the prohibitory clause of Section 497 Cr.P.C. There is sufficient material available on record to connect the applicants with the commission of the offence. In view of above, the instant bail application is dismissed and the interim pre-arrest bail earlier granted to them vide order dated 15.10.2018 is hereby recalled.

6. The observations made above are tentative in nature and will not affect the case of either party at the trial.

Judge

ARBROHI