IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 618 of 2022.
Applicant: Fayaz Hussain son of Dhani Bux Mugheri, through Mr. Ahmed Bux Abro, Advocate.
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Complainant: Nadir Hussain, through Mr. Sabir Ali Shaikh, Advocate.
Date of hearing: 24.02.2023.
Date of decision: 24.02.2023.
O R D E R
Zulfiqar Ali Sangi, J: Applicant/ accused Fayaz Hussain son of Dhani Bux Mugheri seeks pre arrest bail in F.I.R No.30/2022 registered at P.S Kamber City for offences punishable under Sections 324, 114, 148 & 149 P.P.C. The applicant approached the learned trial Court with same bail plea, which was declined by learned 2nd Additional Sessions Judge, Kamber, vide order dated 15.03.2022.
2. The allegation against applicant/ accused as per F.I.R lodged by complainant Nadir Hussain is that he (Fayaz Hussain) and co-accused Barkat Ali fired pistol shots upon him with intention to murder. The fire made by applicant is alleged to have hit to complainant on his left shoulder, while fire made by co-accused is allegedly it to complainant on upper part of leg.
3. Learned counsel for the applicant mainly contended that applicant has been falsely booked in the false case due to enmity; that there is delay of about a month in lodging of the F.I.R; that the injury assigned to applicant is not on vital part of body of the injured/ complainant; that the case was found false by the police during course of investigation and was recommended for its disposal under cancel “B” class. Learned counsel further added that, in-fact the injured received injury during the incident as reported in F.I.R No.04/2022 of same Police station at the hands of Asghar Ali (who is deceased in said F.I.R), who according to contents of said F.I.R made fire in his defence at complainant Nadir Hussain with his licensed weapon. Learned counsel in support of his case relied upon case of Master Dur Muhammad and 2 others v. The State (1994 P.Cr.L.J 1769), Umar Hayat v. The State and others (2008 SCMR 1621) and Rehmatullah v. The State and others (SBLR 2012 Sindh 113).
4. Conversely, learned D.P.G. appearing for the State has opposed confirmation interim pre arrest bail in favor of the applicant on the grounds that applicant is named in the F.I.R with specific role of causing pistol shot to complainant, as such ingredients of Section 324 P.P.C are fully attracted in the case and such offence falls within prohibition as contained in Section 497 Cr.P.C; that delay in reporting the matter to police has been fully explained; that no malafide are alleged for false implication of accused.
5. Learned Advocate for the complainant has argued in the same line, as argued by learned D.P.G for the State.
6. Heard learned counsel for respective parties and perused the material available on record. Perusal of record contemplates that the delay in registration of the F.I.R has been fully explained. It is further appears that applicant has been nominated in the F.I.R with specific role of causing firearm injury with pistol to Complainant Nadir Hussain hitting on his shoulder/ muscle. A bullet, causing injury to the shoulder of injured, may pierce in the head or chest with just a minor jerk of the hand of accused. All this, bring the case of applicant prima-facie within the spirit of Section 324 of the P.P.C, hit by statutory prohibition and in view whereof, the accused cannot be granted extra ordinary concession of pre arrest bail in the absence of any consideration within the purview of subsection (2) of section 497 Cr.P.C. Even otherwise, a murderous assault as defined in Section 324 P.P.C draws no anatomical distinction between vital or non-vital parts of human body; once the trigger is pressed and the victim is effectively targeted, “intention or knowledge” as contemplated by the Section 324 P.P.C 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.
7. Moreover, no malafides are alleged against complainant party to falsely implicate the applicant, which is the main ingredient for grant of pre arrest bail. So for as contention of learned counsel for applicant that the case recommended for its disposal under cancel “B” class; suffice it to say that opinion of the police is not binding upon the Court, even otherwise the report of the police was not accepted by concerned Magistrate, who took cognizance of the case. Another contention of learned counsel that injured received injury during the incident as reported in F.I.R No.04/2022 of same Police station at the hands of Asghar Ali (who is deceased in said F.I.R), who according to contents of said F.I.R made fire in his defence at complainant Nadir Hussain with his licensed weapon. In this context, it is to say that this will be deeper appreciation of the material, which is unwarranted at bail stage, as only tentative assessment is to be made while deciding the bail application. However, it reflect that the complainant/ injured was present at the place of incident, where he received the said injury.
8. In the light of above position, discussion and circumstances, I am of the considered view that applicant/ accused has failed to make out his case for grant extra ordinary relief of pre arrest bail; therefore, the bail application is dismissed and interim pre arrest bail already granted to applicant is hereby recalled. Needless to state that whatever stated above is tentative in nature and will not cause prejudice to case of either party at trial.
9. The case law relied upon by learned counsel for the applicant is on different footing, and is not helpful to the applicant, as it varies from case to case depending upon the facts of each case.
Judge
Ansari