1. For orders on M.A. 428/06 (Urgent Application)
2. FOR HEARING._________________________________
18.02.2006
Mr. Ashraf Hussain, Advocate for the applicant.
Mr. Arshad Lodhi, A.A.G.
By this order I intend to dispose of Criminal Bail Application filed on behalf of the applicant Muhammad Ali s/o Rifayatullah Khan, in a case Crime No.93/04, registered at P.S. Khawaja Ajmair Nagri for an offence under Section 324/34 Q&D. Ordinance. The bail plea of the applicant was declined by the learned IInd Additional Sessions Judge Central, Karachi.
The prosecution story as unfolded in the FIR is that on the eventful day complainant Muhammad Tahir s/o Muhammad Siddiq appeared at P.S. Khawaja Ajmair Nagri and lodged FIR bearing No.93/04 the details whereof are shown as under:-
“As per contents of the FIR the prosecution story is that I am the resident of House No.L-799, Sector No.3, North Karachi, for last 2/3 years one of muhalla person asked to our father to give the hand of our sister for marriage with the accused person, whereas our father has refused to do so and on refusals the dispute was arosed between the parties which caused exchange to hot words from both side. Before night, my sister went to the top of the house the whether was very hot while she was on the roof of the house Muhammad Yaseen threw a stone towards my sister with intend to commit mischief. I reprimanded but he was bent upon his wicked action. After this information/occurrence, whereupon Yaseen said that he would see her brothers, as they also came on the roof, when my younger brother Aurang Zaib came at night from his work, he came to know about this, on which he complained to Yaseen to leave/drop of this sort of things, it provoked Yaseen said that he will see him/brother when he ccome. Today I was at house, at about 10.00 a.m. my younger brother Aurang Zaib aged about 19 years was sent to get papay/rusk for our mother as soon as he went out of the house I heard fire and my mother went to see, Waseem and Muhammad Ali caught holding of my brother in the street at the corner of the house No.L-779, and they are beating my brother with right hand, Muhammad Ali was holding the repeater and other was holding the pistol, whereupon I raised hue and cry and reached at the house where Yaseen and Waseem challenged me and my brother that they will kill us, Muhammad Ali took the repeater and started firing and two bullets hit my right leg and Aurang Zaib was hit on his right leg by bullet, he fell down and many people gathered at the spot, Muhammad Imran son of Muhammad Ashraf and other muhalla people brought Aurang Zaib was admitted in hospital, action may be taken hence the case was registered.”
The investigation followed and due course the applicant was sent up to stand trial before the competent Court of law.
It has been contended by the learned counsel for the applicant that the applicant is innocent and falsely implicated in this case due to enmity which started with the refusal of proposal of co-accused Yaseen with the sister of the complainant. He has further submitted that alleged firing by the applicant was not on the vital parts of the body. It has further been contended that no role is assigned to the applicant. Lastly he submits that learned counsel for the applicant has also referred to the following case law in support of his contentions:-
1. M/s Dur Muhammad & two others Vs. The State
(1994 PCr.LJ 1769)
2. Shoaib Mehmood Butt Vs. The State,
(1996 SCMR 1845)
3. Muhammad Arshad Vs. The State,
(1997 PCr.L.J.433)
4. Haider Shah etc. Vs. The State
(PLJ 1999 Cr.C. (Peshawar) 859)
As against the arguments of the learned counsel for the applicant, learned AAG concedes to the grant of bail as the punishment is less then ten years and does not come with the prohibitory clause.
I have considered the arguments of the learned counsel for respective parties and perused the record of this case very carefully. The perusal of case file shows that statements of complainant and the victim were recorded by the trial Court, certified copies are available on record. In the said statements both of them have fully implicated the present applicant in the commission of present crime. They have gone to say that the present applicant had made direct firing on the victim which hit his right leg below shin. Even the applicant’s counsel has not controverted the fact that the applicant made firing on the victim. The authorities relied upon by learned counsel for the applicant are distinguishable from the facts and circumstances of the present case. I feel that learned counsel for the applicant has not been able to make out a case for bail, hence Criminal Bail Application No.49/2006 is dismissed.
JUDGE