IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

(Crl.Bail Application No.S-589 of 2022)

Applicant:                         Tarique Hussain s/o Sadaruddin Jatoi,

                                         Through Mr. Abdul Rehman Bhutto, Advocate.

Complainant:                   Din Muhammad s/o Ali Nawaz Jatoi Through Mr. Azhar Hussain Abbasi, Advocate

The State:                         Through Mr. Aitbar Ali Bullo, D.P.G

(Crl.Bail Application No.S-40 of 2023)

Applicant:                         Khalid Hussain s/o Sadaruddin Jatoi,

                                         Through Mr. Safdar Ali Bhutto, Advocate.

The State:                         Through Mr. Aitbar Ali Bullo, D.P.G

Date of hearing:                06.02.2023

Date of decision:               06.02.2023 

O R D E R

ZULFIQAR ALI SANGI, J:- Through listed criminal bail application(s), the above named applicants seek their admission to pre & post-arrest bail in Crime No.73/2022, registered with Police Station, Madeji, District Shikarpur, for offences punishable U/S.324, 109, 504, 34 PPC. Earlier, the pre-arrest bail application of applicant Tarique Hussain Jatoi was declined vide order dated 29.11.2022, passed by learned 1^st Additional Session Judge/MCTC, Shikarpur while bail plea of applicant Khalid Hussain Jatoi was turned down by learned 3^rd Additional Sessions Judge, Shikarpur, vide order dated 19.01.2023.

2.       Succinctly, the allegations against applicants/accused as per FIR lodged on 16.11.2022, at about 1900 hours by complainant Din Muhammad Jatoi with P.S Madeji, District Shikarpur, are to the effect that on 13.11.2022, at about 05.00 P.M, on abetment of co-accused Sadaruddin, the present applicants/accused, duly armed with T.T pistols, in furtherance of their common intention fired at the complainant with intention to commit his murder which hit him on his left feet and right leg knee and then went away by insulting the complainant and his witnesses, for that the instant case was registered against them.

3.       Learned counsel for the applicants/accused prayed for grant of bail to the applicants/accused by repeating the same grounds of bail application(s) adding that the present case is counter blast of FIR bearing Crime No.76/2022 of P.S Madeji, lodged by applicant Tarique Hussain Jatoi against the complainant and his sons and it is yet to be determined at the time of trial as to which party was aggressor or aggressed upon, therefore, the guilt of present applicants/accused is calling for further inquiry. In support of his contentions, learned counsel for applicant Tarique Hussain Jatoi relied upon an unreported order of this Court passed in Cr.Bail.Appln.No.S-588/2022.

4.       Conversely, learned counsel for the complainant and learned D.P.G for the State opposed the bail application(s) by contending that the applicants/accused are nominated in FIR with specific role of causing injuries to the complainant and that there is no malafide on the part of complainant to implicate them in this case falsely, therefore, they do not deserve the concession of bail.

5.       Heard learned counsel for the parties and perused the material made available on record with their able assistance.

6.       The meticulous perusal of record reflects that the present applicants/accused are nominated in the FIR with active role of causing injuries to the complainant on his left feet and right leg knee, the same on medical examination were opined to be “Jurh Ghayr Jaifah Mutalahimah & Jurh Ghayr Jaifah Hashimah”, falling Under Section 337-F(iii) & 337-F(v) PPC, which are not bailable in its nature. However, Section 324 PPC provides punishment upto 10 years and the same is falling within prohibitory clause of Section 497 Cr.PC. The version of complainant is endorsed by the witnesses in their 161 Cr.PC statements. Furthermore, the ocular version is fully consistent with medical account. No doubt, there is delay of three days in lodgment of the FIR but it is explained plausibly by the complainant, therefore, the same even otherwise could not be resolved by this Court in favour of the applicants/accused at this stage. The complainant and his witnesses may be related inter-se but their relationship is not enough to disbelieve them as they are appearing to be natural witnesses to the incident. Moreover, no any substance has been brought by the applicants/accused to justify their false implication in this case. In addition to this, the finding of medical officer recorded by him in final medical certificate despite challenging by one of the applicants before the medical board was proved to be correct. In that situation, there appear sufficient grounds to believe that the applicants/accused are guilty of the offence for which they have been charged.

7.       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”.

8.       Having concluded above and while relying upon cases of Bilal Khan v. The State through P.G Punjab and another (2020 SCMR-937), Ghazan Khan v. Mst.Ameer Shuma and another (2021 SCMR-1157) and Haji Shah Behram v. The State and others (2021 SCMR-1983), the applicants/accused have failed to make out a case for grant of pre & post-arrest bail. Consequently, the listed criminal bail application(s) being devoid of merits are dismissed accordingly and the order granting interim pre-arrest bail to applicant/accused Tarique Hussain Jatoi is hereby recalled.

9.       Needless to mention here that the observations recorded hereinabove are tentative in its nature and shall not prejudice the parties at trial.

JUDGE

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