IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Bail Application No.S-312 of 2022

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

For hearing of bail application

Date of hearing 28.10.2022

Mr. Ghulam Sarwar Lund Advocate for applicant.

Mr. Imdad Hyder Solangi Advocate for complainant.

Mr. Khalil Ahmed Maitlo Deputy Prosecution General for State.

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O R D E R

ABDUL MOBEEN LAKHO, J: Through this bail application, applicant Abdul Ghaffar son of Faiz Muhammad Chand, who has been booked in Crime No.05/2022 registered at Police Station, Leghari district, Naushehro Feoze for offences punishable under Sections 337H(2), 337A(i), 337F(i), 337F(ii), 341, 147, 148, 149 PPC, seeks pre-arrest bail. Earlier his bail application was declined by Additional Sessions Judge, Moro vide order dated 11.06.2022.

2. The crux of prosecution case as unfolded in the FIR lodged by complainant Muharam Ali son of Nooruddin Chand on 29.05.2022 at 1500 hours allegedly the dispute between him and applicant arose as adjacent to his house in common street, accused Abdul Ghaffar had raised hedges and closed the street adjacent to his house for which he filed an application u/s 133 Cr.P.C before Court of Ist Civil Judge and J.M, Moro on 17.05.2022 regarding its opening and demarcation and learned Court passed such order in this regard which antagonized applicant party. On the day of incident complainant, his father Nooruddin and his relative Qurban were available in the street it was about 1030 hours morning time accused Abdul Ghaffar (present applicant) armed with hatchet, Abdul Jabbar with pistol and Abdul Razaque armed with lathi alongwith three unidentified, on coming accused Abdul Jabbar made aerial firing in order to create harassment while present accused Abdul Ghaffar caused hatchet blow to the father of complainant, namely, Nooruddin on his knee of right leg while accused Abdul Razzak caused lathi blow to relative Qurban Chand on his waist and other parts of his body. Complainant party raised cries which attracted Habibullah who intervened and tried to rescue to complainant party. The unidentified accused caused lathi blows to Habibullah on his head. Thereafter all accused by issuing threats ran away. Complainant after receiving letter took injured to Taluka hospital Moro from where the father of complainant Nooruddin referred to Nawabshah Hospital for treatment. Complainant then appeared at Police Station and lodged FIR.

3. Learned Counsel for the applicant contends that applicant has falsely been implicated by the complainant with malafide intention and ulterior motives. He further submits that complainant party attacked upon applicant party in their house and they caused hatchet blows to Mst. Benazir and Mst. Nusrat which they received on leg and other parts of body but police did not register FIR of the complainant party on the contrary complainant in collusion with police lodged FIR against applicant party. He contends that applicant party did not cause any injury, however, injury received by injured Nooruddin is self-suffered only in order to save their skin from clutches of law. He contends that co-accused after getting order from the learned Court lodged FIR against complainant party bearing Crime No.06/2022 u/s 452, 114, 395, 506/2, 436, 27, 337A(i), F(i) F(ii), 147, 148, 149 PPC at same police Station and this is counter version case and it is yet to be determined at the trial that who is aggressor and aggressed upon. He contends that medical evidence is inconsistent with ocular testimony and deep scrutiny of evidence is not permissible, nor it was the requirement of law at bail stage however, question could be decided in vacuum as to whether accused is prima facie connected with the commission of alleged offence or not. He lastly contended that co-accused Abdul Jabbar has been granted bail by the learned trial Court while bail of present applicant has been declined of the trial Court. By contending so, he prayed for grant of bail. He relied upon the case of Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and other (2011 SCMR 606), Nazeer Muhammad and another v. The State (2011 MLD 1000), Khalil Ahmed Soomro and others v. The State (PLD 2017 Supreme Court 730), Saqib and others v. The State and others (2020 SCMR 677), Sadiq Ali v. The State (2020 SCMR 679).

4. As against, Mr. Khalil Ahmed Maitlo, learned Deputy Prosecutor General assisted by Mr. Imdad Hyder Solangi, learned Counsel for complainant vehemently opposed the grant of bail and supported the impugned order passed by learned Additional Sessions Judge, Moro. He further contended that complainant has clarified time of incident in the body of FIR hence, question of erroneous in time does not arise at all. He also contends that Counter-version case could not be given any weight as in that case two persons sustained slightest injuries; however, in the present case the leg of father of complainant has been dislocated due to causing hatchet injuries which supported the medical evidence without any reason/rhyme which act apparently on face of it is illegal and unlawful. He lastly contended that applicant alongwith other accused have attributed specific role of firing upon deceased. He prayed for dismissing the bail application. In addition, counsel for complainant contends that applicant and other co-accused are nominated in the FIR with specific role and they have formed an unlawful assembly caused injuries to injured Nooruddin on his leg which has been imputed due to causing injuries. The ocular evidence is fully supported by medical evidence. He lastly contends that co-accused whom bail has been granted, his case is on different footings to that of present applicant/accused. They contend that this is not fit case for confirmation.

5. Heard arguments of learned counsel for parties and perused the record.

6. Admittedly, the complainant stated in his FIR that applicant Abdul Ghaffar caused hatchet blow injuries to Nooruddin which he received on right leg and according to counsel for complainant the leg of injured has been amputated but Medical Officer in Final Medical certificate opined the injury attributed to the injured as “Incised wound measuring about 10 cm x 4 cm (Bone deep) with underlying bone fracture and displacement located on the right knee” and kind of weapon was used as “Sharp and Heavy Object” declared as Jurh-Ghyr-e-Jaifah Munaqillah under Section 337F(vi) PPC; punishable upto seven years; however, version advanced by counsel for complainant regarding amputation of leg of injured is totally refuted by medical opinion. Indeed, deep scrutiny of evidence is not permissible at the stage of bail. Furthermore, this is a counter blast of FIR No.06/2022 lodged by present applicant party against complainant party, they after obtaining order from the Court of law lodged FIR against complainant of this case. It is observed that all these points could properly be thrashed out at the time of recording of the evidence at trial but presently no exception could be taken with regard to the said position and no tentative findings could be given as to which party is aggressor. The applicant is attending the trial Court regularly, therefore, recalling of interim pre-arrest bail already granted to him, will not serve any useful purpose. Consequently, instant bail application is hereby allowed. The interim pre-arrest bail already granted to applicant vide order dated 22.06.2022 is hereby confirmed on same terms and conditions. The applicant present is directed to continue his appearance before trial Court, till final decision of main case.

7. Needless to mention here that observation made herein above are tentative in nature and trial Court may not be influenced of the same and decide the case on its own merits as per evidence and the material made available before it.

Bail application stands disposed of in the above terms.

J U D G E

Ihsan/*

Abdul Mobeen Lakho, J; Through instant bail application, applicant Orangzeb son of Rustam Khan Jatoi Kalhoro seeks his admission on post-arrest bail in Crime No.12/2011 Police Station Landhyoon district, Khairpur under Sections 324, 337F(iii), 337F(v), 337H(ii), 148, 149 PPC. Earlier his bail application was declined by learned Additional Sessions Judge, Gambat vide order dated 03.02.2022.

2. The facts of the prosecution case are mentioned in the FIR attached with the memo of bail application and the same are not to be re-produced in view of the case of Mohammad Shakeel v. The State and others reported as PLD 2014 SC 458.

3. Learned Counsel for the applicant contends that applicant has falsely been implicated by the complainant due to dispute over landed property; that there is two days delay in lodgment of FIR for which no plausible explanation has been furnished by complainant; that applicant is law graduate and is practicing lawyer; that complainant and applicant are known to each other; that all accused encircled the complainant party but injury has received only one person which on face of it is clear malafide on the part of complainant party which injuries does not fall within the prohibitory clause of Section 497 Cr.P.C; that injured has received two injuries one of Repeater and one of K.Kov but injuries are not identified that who has caused the injuries is yet to be determined at trial after recording evidence of PWs; that applicant/accused is behind bars since 20.05.2022 since more than six months. He further contends that injuries attributed on the person of injured is on non-vital part of body and there is no repetition of fires. By contending so, he prayed for grant of bail. in support of his contentions he has relied upon the cases of Tariq Bashir and 5 others v. The State (PLD 1995 Supreme Court 34), Abdul Majeed and another v. The State (2009 YLR 344), Muhammad Umar v. The State and another (PLD 2004 Supreme Court 477), Muhammad Ramzan v. The State and another (2016 YLR 2727).

4. As against, learned Deputy Prosecutor General assisted by Mr. Iqbal Ahmed Ujjan, learned Counsel for complainant vehemently opposed the grant of bail and supported the impugned order passed by learned Additional Sessions Judge, Gambat; that applicant/accused is specifically nominated in the FIR with a specific accusation of causing firearm injuries on the left forearm near elbow joint and right conjoined region of injured Abdul Majeed is alleged against him; that ocular account stands contradicted by medical evidence as applicant directly made fires at injured Abdul Majeed Jatoi which he received; that I.O. has collected Ten empties of 12 bore and 06 empties of K.Kov from the place of wardat. He prayed for dismissing the bail application. In support of his contention he relied upon the cases of Aurangzeb v. The State and others (2022 SCMR 1229), Sheqab Muhammad v. The State and others (2020 SCMR 1486), Ghazan Khan v. Mst. Ameer Shuma and another (2021 SCMR 1157) and Haji Shahbehram v. The State and others (2021 SCMR 1983).

5. I have considered the arguments advanced by learned Counsel for parties and have gone through the record.

Perusal of record reflects that name of present applicant appears in the FIR with specific role of causing firearm injuries to injured Abdul Majeed as he armed with repeater caused injuries to injured on his left forearm near elbow joint and right conjoined region which is corroborated by medical evidence. The Medical Office opined injury No.1 as Ghyr Jaifah Mutalahimah and Ghyr Jafiah Hashima caused by fire arm while injury No.2 is declared as Ghyr Jaifah Mutalahimah caused by fire arm weapon punishable upto 05 years. Further, the complainant has alleged motive that applicant/accused exchanged hot words with complainant party over dispute of landed property. So far as the delay in lodging the FIR is concerned, prima facie, the FIR itself shows that it is well explained. No doubt in the cases cited by the learned Advocate, bail was granted but in each one of them, the facts and circumstances were quite different and thus they were distinguishable. The prosecution witnesses in their 161 Cr.P.C statements have fully supported the version of FIR. The offence with which applicant/accused is charged falls within the ambit of prohibitory clause of Section 497(2) Cr.P.C. While taking the guidance from the case of Sheqab Muhammad v. The State and others (supra), the Honourable Supreme Court of Pakistan has held that;

“Injury on the 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 examination 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 denied 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.”

In view of above, I am of the considered view that the applicant/accused has failed to make out a case for grant of bail. Accordingly, the bail application is dismissed.

Bail application stands disposed of in the above terms.

J U D G E

Ihsan