IN THE HIGH COURT OF SINDH,
BENCH AT SUKKUR
Cr. Bail Appln. No. S – 602 of
2021
Applicant : Talib Hussain S/o Muhammad Yousif, Mallah
through Mr. Irshad
Hussain Dharejo Advocate
Complainant: Khursheed Metlo,
Through Mr. Habib-ur-Rehman Shaikh Advocate
Respondent : The
State
Through Mr. Aftab Ahmed Shar, Additional PG
for State
Dated of
hearing: 11.10.2021
Date of order : 11.10.2021
O R D E
R
AMJAD ALI SAHITO, J – Through
instant bail application, the applicant/accused seek pre-arrest bail in Crime
No.225 of 2021 registered at Police Station ‘B’ Section Khairpur
for an offence punishable under Sections 324, 337-H(ii), 148 and 149 PPC. The
bail plea of the applicant/accused has been declined by learned II-Additional
Sessions Judge, Khairpur vide order dated 27.08.2021.
2. The facts of the
prosecution case briefly stated are that on 02.08.2021, complainant Khursheed Metlo lodged his report
at Police Station ‘B’ Section, Khairpur alleging
therein that he had purchased land beside his village from one Khan Muhammad, on
which accused Talib Hussain
and party was annoyed and they used to threaten for returning the said land. It
is alleged that on 31.07.2021, he (complainant) along with his father Munawar Ali and maternal-cousin Muhammad Nadeem were going on motorcycle, when it was 7:00 pm
reached near Al-Yousif Marriage Hall, they saw
accused Talib Hussain
(present applicant), Rashid Ali, Ali Hassan, Gul
Hassan, Ghulam Hyder, they
all took-out pistols, out of them accused Talib Hussain (present applicant) asked them that so many times
we have demanded from you to return the purchased land of his relatives, but
you did not obey, saying so, accused Talib Hussain made direct pistol shot upon his father Munawar Ali, which hit on his right shoulder, which hit him
and he raised cries and fell-down, while rest of the accused in order to create
harassment made aerial firing, due to cries and firearm reports, the neighbourers gathered there, hence the accused persons
escaped-away. Thereafter, the injured Munawar Ali was
taken to police station ‘B’ Section Khairpur and
after getting letter for treatment, he was shifted to Civil Hospital Khairpur, leaving him there under treatment, he
(complainant) appeared at Police Station and lodged the FIR as stated above.
3. It is contended by learned
counsel for the applicant/accused that he is innocent and has falsely been
implicated in this case by the complainant due to malafide
intentions and ulterior motives over the dispute on landed property; that there
is delay of 03 days in lodgment of the FIR without any plausible explanation;
that the injury sustained by the injured Munawar Ali
has been declared as “Jurh Ghayr Jaifah Mutalahimah”,
punishable u/s 337-F(iii) PPC, which carries maximum punishment upto three years, hence does not fall within the prohibitory
clause of Section 497 Cr.P.C; the challan
of the case has been filed, hence he is no more required for the purpose of
further investigation; that the police has wrongly applied Section 324 PPC, as
the ingredients of the same do not attracted from the facts of the FIR. He
lastly contends that the interim pre-arrest bail already granted to the
applicant/accused may be confirmed on same terms and conditions.
4. Conversely, learned
counsel for the complainant as well as learned Additional PG prayed for
dismissal of instant bail application by contending that the applicant/accused is
nominated in the FIR with specific role and he has actively participated in the
commission of the offence by causing firearm injuries to the injured Munawar Ali; that only tentative assessment is to be made
by the Courts while deciding the bail application.
5. I have heard the learned
counsel for the parties and perused the material available on record. There is
delay of 03 days in lodgment of the FIR for which no plausible explanation has
been furnished by the complainant. The name of the applicant/accused is
transpiring in the FIR with the role that he made fire from his pistol which
hit on the right arm shoulder of injured Munawar Ali,
whereas, the injury sustained by the injured has been declared as “Jurh Ghayr Jaifah
Mutalahimah” punishable u/s 337-F(iii) PPC, which carries maximum punishment upto 03 years, hence does not fall within the prohibitory
clause of Section 497 Cr.P.C. The applicability of
Section 324 PPC would be determined at the trial. The challan
of the case has been submitted hence the applicant/accused is no more required
for the purpose of further investigation. In such circumstances, the
applicant/accused has made-out a case for grant of pre-arrest bail in view of
Sub-section (2) of Section 497 Cr.P.C. Consequently,
the instant bail application is allowed and the interim pre-arrest bail already
granted to the applicant/accused vide order dated 21.09.2021 is hereby confirmed on same
terms and conditions. The applicant/accused is directed to regularly attend the
trial Court, in case of failure, the trial Court is at liberty to take action
in accordance with law.
7. The observations made hereinabove
are tentative in nature and will not prejudice the case of either party at the
trial.
Judge
ARBROHI