IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail Appln. No. S-624 of 2022
Applicant: Ghulam Mustafa Brohi
Through Mr. Atta Muhammad, Advocate
The State Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of hearing: 27-01-2023
Date of Judgment: 27-01-2023
O R D E R
ZULFIQAR ALI SANGI, J.- Through instant criminal bail application, the applicant/accused Ghulam Mustaf seeks Interim pre-arrest-bail in Crime No.145/2022, registered at Police Station New Foujdari, District Shikarpur, for the offence U/S 324,504,114,34 P.P.C. Earlier he approached the trial court, wherefrom his bail was dismissed vide order dated 21.12.2022.
2. The facts of the prosecution case are available in the memo of bail application and the copy of F.I.R is also attached with the bail application, therefore, no need to reproduce here.
3. Learned counsel for the applicant/accused submits that the applicant is innocent and has falsely been implicated in this case by the complainant due to enmity with malafide intention; that there is delay of two days in lodging the F.I.R, same has not been explained by the complainant; that though the offence U/S 324 P.P.C is punishable upto 10 years, however, the injury allegedly caused by the applicant is punishable upto three years. Lastly he has prayed that interim pre-arrest bail already granted to the applicant be confirmed.
4. The complainant is present along with injured. He has shown full confidence upon the learned D.P.G. Learned D.P.G for the state opposed the grant of bail and submits that applicant is nominated in the F.I.R with specific role of causing injury; that the delay whatsoever is satisfactory explained in the F.I.R; no malafide or ulterior motive has been shown against the complainant to involve the applicant in the commission of offence; that the offence carries punishment upto ten years, which falls within the prohibitory clause of section 497 Cr.P.C, therefore, the applicant is not entitled for any concession of bail. In support of his contentions, he has relied upon the case laws reported as BILAL KHAN versus The STATE (2020 SCMR 937) and SHEQAB MUHAMMAD versus The STATE and others (2020 SCMR 1486).
5. I have heard learned counsel for the applicant, learned Additional Prosecutor General along with complainant and perused the material available on the record with their able assistance.
6. The record reflects that applicant is nominated in the F.I.R with specific role of causing fire arm injury to injured Abdul Ghaffar which hit him on his right knee. Such injury has also been supported by the medical evidence and corroborated by the statement under Section 161 Cr.P.C of the witness. Delay has been fully explained by the complainant in the F.I.R and the offence for which the applicant is alleged involved comes within the prohibitory clause of Section 497 Cr.P.C. In case of SHEQAB MUHAMMAD V. THE STATE AND OTHERS (2020 SCMR-1486), the Honourable Supreme Court of Pakistan has held that:-
“3. Arguments that ocular account stands contradicted by medical evidence and in the absence of an independent witness from the public, petitioner's general participation, resulting into an injury on a non-vital part of the body, particularly in the absence of repeated fire shot, squarely brings his case within the remit of further probe, are not only beside the mark but also cannot be attended without undertaking an in-depth analysis of the prosecution case, an exercise forbidden by law at bail stage. In a daylight affair, two persons sustained firearm injuries besides the one having endured violence through blunt means and as such requires no public support to drive home the charge; their statements supported by medical examinations of even date, cumulatively bring petitioner's case prima facie within the mischief of section 324 of the Pakistan Penal Code, 1860, hit by statutory prohibition, in view whereof, he cannot be released on bail in the absence of any consideration within the purview of subsection (2) of section 497 of the Code ibid. Similarly, murderous assault as defined in the section ibid draws no anatomical distinction between vital or non-vital parts of human body. Once the triggered is pressed and the victim is effectively targeted, "intention or knowledge" as contemplated by the section ibid is manifested; the course of a bullet is not controlled or steered by assailant's choice nor can he claim any premium for a poor marksmanship. Exercise of discretion by the High Court being well within the bounds of law calls for no interference. Petition fails. Leave declined”.
7. In another case of Bilal Khan v. The State (2020 SCMR 937); wherein the Hon’ble Supreme Court of Pakistan has dismissed the bail application of accused filed for an offence under sections 324, 34 PPC. The relevant para of the said order is reproduced hereunder:
“4…There can be no escape from the fact that the Petitioner is nominated in the FIR with a specific role of causing firearm injury to one Zararullah Khan. The said injured PW has accused the Petitioner and stands by his statement. It is not clear on what basis the Police found the Petitioner innocent. At the bail stage, only a tentative assessment is to be made and deeper appreciation is not permissible. There is sufficient material on record to connect the Petitioner with the crime. The offence falls within the prohibitory clause of section 497, Cr.P.C. in this view of the matter, we are not inclined to grant post-arrest bail to the Petitioner. Hence, this Criminal Petition must fail.”
8. Having guidance from the above case laws cited by learned D.P.G. as well as from the tentative assessment of the material available on record, it appears that there is sufficient material available with the prosecution, which connects the applicant/accused with the commission of alleged offence.
9. Resultantly instant criminal bail application is dismissed. Interim order passed earlier dated 26.12.2022 is hereby recalled.
10. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial court while deciding the case of either party at trial.
J U D G E