IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Bail Application No. S-529 of 2021

                                   

 

            Applicant                  :           Zulfiquar s/o Wali Muhammad Kori, through

                                                            M/s. Abdul Majeed Memon & Allah Bux Gabol, advocates

           

            Respondent              :           The State, through Mr. Talib Ali Siyal, Assistant Prosecutor General, Sindh

                                                               

            Date of hearing        :           24.09.2021 

            Date of order            :           24.09.2021

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                                                          ORDER

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ZAFAR AHMED RAJPUT, J.-       Applicant/accused Zulfiquar s/o Wali Muhammad Kori being failed to get the concession of post-arrest bail from the Court of Additional Sessions Judge, (MCTC), Ubauro in Cr. Bail Application No. 199 of 2021 vide order, dated 23.08.2021, through the instant application seeks the same concession from this Court in Crime/FIR No. 19 of 2021, registered under sections 324, 337-H (2), 34, P.P.C. at Police Station Wasti Jiwan Shah.

 

2.         As per FIR, complainant Ghulam Yaseen Kori had matrimonial dispute with the applicant Zulfiquar and others. On 09.02.2021, at about 23:30 hours, applicant, along with co-accused Muhammad Ayub and two unknown accused, entered into the house of complainant and made straight fire at his brother Ghulam Hussain with intention to commit his murder, while co-accused Muhammad Ayub Kori caused lathi blows to P.W. Asif Ali, for which, the accused were booked in the instant case.     

 

3.         Learned counsel for the applicant has mainly contended that the applicant is innocent and has falsely been implicated in this case by the complainant due to enmity; that there is delay of 16 days in lodgment of the FIR, for that no plausible explanation has been furnished by the complainant, hence deliberation and consultation for false implication of the applicant cannot be ruled out; that in the FIR, the identification of the accused has been shown on the electric bulbs which is very weak type of evidence and even in mashirnama no source of identification has been disclosed;  that the alleged injury caused by a single fire shot on non-vital part of the body of injured Ghulam Yaseen has been declared by the MLO as Ghayr Jaifah Hashimah, punishable under section 337-F(v), PPC punishable with imprisonment up to five years as ta’zir, hence, the alleged offence does not fall within the prohibitory clause of section 497, Cr. P.C.; that had there been any intention of causing murder, there would have been multiple fires on the vital part of the body of the injured, hence, it is a fit case for further inquiry, entitling the applicant for the concession of bail.

 

4.         Conversely, learned A.P.G has opposed the grant of bail to the applicant on the grounds that he is nominated in the FIR by name and with specific role; that the eye-witnesses in their 161, Cr.P.C statements have fully connected the applicant with commission of alleged offence; that the ocular account is fully supported with the corroborative medical evidence; that the police recovered the crime weapon from the possession of the applicant on 28.02.2021, which was sent to ballistic expert along with crime empties and the report of the ballistic expert is positive; that sufficient evidence is available with prosecution to connect the applicant with commission of alleged offence.    

 

6.         Heard the learned counsel for the applicant, A.P.G and perused the material available on record with their assistance.

 

7.         It appears from the tentative assessment of the record available with the prosecution that the applicant is nominated in the FIR by name with specific role of causing firearm injury to injured Ghulam Yaseen on his left leg causing fracture of lower end of the tibia. It may be observed that the tibial fracture contributes to the prolonged healing time, depending on the severity of the break and the complexity of the surgery and it may cause permanent disability in walking properly; hence, the nature of alleged injury is very serious. Enmity between the parties is an admitted fact. Both the parties reside in the same vicinity; hence, prima facie there is no element of mistaken identity of the applicant even in odd night hours.  Besides the injured, there are two other eye-witnesses who have fully connected the applicant with commission of alleged offence. During course of investigation, police recovered the pistol used in commission of alleged offence by the applicant.  The alleged offence under section 337-F (v), PPC although does not fall within prohibitory clause of section 497, Cr. P.C. but in such like cases the applicant cannot claim bail as matter of right. Each case has to be dealt with on its own facts, circumstances and gravity of offence. As regard delay of 16 days in lodging of FIR, it has been stated in the FIR that after obtaining letter from police, the injured brought  at Taluka Hospital, Ubauro from there he was referred to Rahim Yar Khan Hospital where he was treated and then the complainant lodged the FIR; hence, plausible explanation prima facie is available on record.  Even otherwise, delay in FIR is not ipso facto a ground for the grant of bail.   

 

8.         From the tentative assessment of the evidence in hands of prosecution, I am of the view that prima facie sufficient evidence is available with the prosecution against the applicant to connect him with the commission of alleged offence. Hence, instant application is dismissed. The above observations are tentative in nature for the disposal of bail application and shall not influence the trial Court while deciding the case on merits.

 

            Above are the reasons of my short order, dated 24.09.2021, whereby instant application was dismissed.

JUDGE