ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Bail Application No. 222 of 2021

 

Date                Order with Signature of Judge                                       .                                             

 

For hearing of bail application.

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09.08.2021

           

Mr. Achar Khan Gabol, advocate for applicant.

 

Mr. Liaquat Ali Malano, advocate for complainant, alongwith complainant.

 

            Mr. Aftab Ahmed Shar, Addl. P.G. for the State.

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             After rejection of their earlier Criminal Bail Application No. 441 of 2021 by the learned Ist Additional Sessions Judge (MCTC), Ghotki, vide order dated 01.04.2021, applicants/accused, namely, (1) Ihsan Ali @ Ihsan s/o Muhammad Bachal @ Bachal (2) Akram Ali @ Akram s/o Raheem Bux @ Raheem (3) Zameer Ahmed @ Zameer s/o Mazarin (4) Abdul Rasool s/o Hazaro Khan @ Hazaro (5) Muhammad Ali s/o Malhar Khan and (6) Khalil Ahmed s/o Malhar Khan through instant criminal bail application seek pre-arrest bail in Crime No. 10 of 2021, registered at P.S A-Section Ghotki under Section 324, 114,147,148 and 149, P.P.C. The applicants were admitted to interim pre-arrest bail by this Court vide order, dated 12.04.2021, now they seek confirmation of their bail.

 

2.         It is alleged that on 18.01.2021, at about 1530 hours, the present applicants, along with other co-accused, duly armed with deadly weapons, having formed an unlawful assembly and in prosecution of their common object of such an unlawful assembly, attempt to take the lives of injured PWs Muhammad Shaban and Muhammad Afzal by causing fire arm shots and hatchet blows on their person at the instigation of co-accused Momin @ Malhar, for which, they were booked in the instant case. As per F.I.R. motive behind the alleged incident is a dispute over landed property between both the parties whereupon, accused were annoyed.    

3.         Heard the learned counsel for the parties and perused the material available on record.

 

4.         The alleged incident is stated to have taken place on 18.01.2011 at about 1530 hours, while F.I.R. has been lodged on 19.01.2021 at 1900 with un-explained delay of 25 hours; hence, the presumption of consultation and deliberation, so also malice and ulterior motive, for lodging of F.I.R. cannot be ruled out, as admittedly, both the parties have inimical terms over the dispute of landed property. It appears that as per F.I.R. injured Muhammad Afzal sustained three firearms injuries, allegedly caused by applicants Ihsan, Zameer and Akram while as per MLC, he received two firearms injuries and one injury caused by hard and blunt substance; hence, the medical evidence is in conflict with ocular evidence. Similarly, as per F.I.R., injured Muhammad Shaban sustained five firearms and four hatchet blows/injuries while as per MLC he received no sharp cutting injuries. None of the alleged injuries is on vital part of the bodies of said injured persons, which have been declared by the Medico-Legal Officer as Ghayr-jaifa Hashimah and “Ghayr-jaifa Mutalahima”, which are liable to daman and punishable for imprisonment up to five years and three years as ta’zir, under sections 337-F(iv) and 337-F (iii) P.P.C., respectively, which do not fall within prohibitory clause of section 497, Cr. P.C.  Had it been intention of the applicants to kill the injured then there would have been injuries on vital part of the bodies; hence, it is yet to be seen if applicants, in circumstances, had any intention to kill the injured and such question could only be determined at trial. As such, case of the applicant is covered under sub-section (2) of Section 497, Cr. P.C., requiring further inquiry into their guilt.

 

5.         Besides, it may be observed that the applicant was granted interim pre-arrest bail by this Court on 12.04.2021 and, admittedly, they have not misused the concession of interim pre-arrest bail and they are regularly attending the trial Court. Under the circumstances, the interim pre-arrest bail granted to applicants is confirmed on the same terms and conditions.

 

6.         Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant on merits. In case applicants try to misuse the concession of bail in any manner, it would be open for the trial Court to cancel their bail after issuing them the requisite notice.  

 

JUDGE