ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-251 of 2022

Applicants: Mir Hassan and others, through

Arjan Das Ladhani, Advocate

Complainant: Shahmir Ali, through

M/S Rukhsar Ahmed Junejo and

Aisha Saeed, Advocates

State:    Through Mr. Aftab Ahmed Shar

Additional Prosecutor General

Date of hearing:  05.09.2022

Dated of order:   05.09.2022

O R D E R

Shamsuddin Abbasi, J: Applicants Mir Hassan, Saeed Ahmed, Sohail Ahmed, Mohsin Ali, Shabir Ahmed, Qasim, Anwar and Asad seek pre-arrest bail in Crime No.13/2022, registered at Police Station Cantonment, District Sukkur, for offences punishable under sections 147, 148, 149, 149, 114, 504, 506/2, 324, 337-A(i), 337-F(i), 337-H(ii) and 342 PPC, after rejection of their bail by learned trial court vide order dated 25.05.2022.

2.              Brief facts of the prosecution case are that on 23.04.2022 at 1540 hours applicants/accused armed with hatchets, guns and lathis forcibly entered into the land of complainant Shahmir Ali where they used abusive language and on the instigation of accused Anwar, accused Saeed Ahmed caused back side hatchet blow to Hakim Ali on right side of his head, accused Sohail caused back side hatchet blow to Hakim Ali on left side of his head, accused Meer Hassan made straight fire of gun at Hakim Ali which hit on his left arm, accused Mohsin caused iron rod blow on his right arm, accused Asad caused lathi blow on his right leg, accused Qasim caused back side of hatchet blow to Meenhal and accused shabir caused lathi blow on back side of chest of Meenhal and other unknown accused have also caused lathi blows on back of Meenhal and then all the accused fled away while making aerial firing.

3. learned counsel for the applicants contends that applicants are innocent and they have been falsely implicated in this case due to landed dispute between the parties; that there is delay of five hours in lodgment of FIR without plausible explanation; that all the sections applied in the FIR are bailable except section 337-F(v) PPC; that no overtact has been assigned to applicants; that there is inconsistency between medical evidence and ocular version; that complainant has falsely implicated eight family members of same and one family; that case has been challaned and applicants are no more required for further enquiry and they are regularly attending the learned trial court. He finally prayed for confirmation of their bail.

4.                On the other hand, learned counsel for the complainant contends that the applicants are nominated in the FIR and specific roles have been assigned to them; that offence comes within prohibitory clause of section 497 Cr.P.C, therefore they are not entitled for grant of bail.

5. Learned Additional P.G has recorded no objection for confirmation of pre-arrest bail on the ground that all the injuries sustained by both injured are bailable except single injury attributed to applicant Mohsin Ali and no purpose would be served out to refuse them bail on technical ground.

6.               Heard learned counsel for the applicants, learned counsel for complainant and learned Additional Prosecutor General as well as perused the material available on record.

 7.               Admittedly there is delay of five hours in lodgment of FIR which has not been plausibly explained by complainant and in background of enmity it cannot be ruled out that FIR has been lodged after due deliberation and consultation. In the present case injured Hakim Ali has sustained six injuries and injured Meenhal has sustained five injuries. Per final medical certificates of both injured all the injuries sustained by them are bailable offences except injury No.3 sustained by Hakim Ali which was declared as Ghair Jafia Damiahah and which has been attributed to applicant Mohsin Ali which too does not come within prohibitory clause of section 497 Cr.P.C even injury attributed to applicant Mir Hassan that he caused gunshot injury to injured Hakim Ali on his left arm is simple in nature and was declared as J.G.J. Damiahah which is bailable offence. At this juncture I would restrain myself to give any finding about gunshot injury on the ground that it would amount to deeper appreciation which is not permissible at bail stage hence applicability of section 324 P.P.C. would be determined at the trial. Complainant has thrown wider net to implicate large number of male family members of same and one family. In the case in hand complainant has implicated applicants Mir Hassan, Saeed Ahmed Sohail Ahmed and Mohsin who are real brothers whereas applicants Shabir Ahmed and Qasim are also real brothers. It is matter of record that no overtact has been assigned to any of the accused. All these aspects of the case make out the case of applicants as further enquiry in terms of section 497 Cr.P.C. In such like nature of cases, Houn’rable Supreme Court has laid down pre-perquisite conditions to satisfy the court on the point of malafide on the part of complainant. Complainant in his FIR had admitted landed dispute with applicant party. Honourable Supreme Court of Pakistan in the case of Khalil Ahmed Soomro and others vs. The State (PLD 2017 Supreme Court 730) has discussed the issue of malafide wherein it has been held as under:-

“……At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide. In this case, it appears that net has been thrown wider and the injuries sustained by the victims except one or two, have been exaggerated and efforts have been made to show that the offences are falling within those provision of law, punishable with five years or seven years’ imprisonment. All those aspect if are combindly taken may constitute element of malafide.”

8. Prima facie sufficient grounds are available to make out a case of applicants for bail on the point of malafide as well as on merits. In view of above, interim pre-arrest bail granted to applicants is confirmed on the same terms and conditions.

10. The observations made hereinabove are tentative in nature and would not prejudice the case of any party at the trial.

J U D G E

Suleman Khan/PA