IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 754 of 2023.
Applicant: Haji Panjo Mazari, through Mr. Saeed Ahmed Bijrani, Advocate.
Complainant: Muhammad Siddique, through Mr. Habibullah G. Ghouri, Advocate.
Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing: 25.03.2024.
Date of decision: 25.03.2024.
ORDER
Muhammad Saleem Jessar, J: Applicant/ accused Haji Panjo son of Haji Qaloo Khan Mazari seeks post arrest bail in F.I.R No. 37 of 2023 registered at P.S Miani @ Baddani for offences punishable under Sections 324, 337-H (ii), 148, 149 P.P.C. His similar prayer was turned down vide Order dated 08.12.2023 passed by learned Sessions Judge, Kashmore @ Kandhkot.
2. The facts of prosecution case in nutshell are described in para 2 of the impugned order. For the sake of convenience the same are reproduced hereunder:
“As per F.I.R lodged by complainant Muhammad Siddique Mazari there is previous dispute between the parties. On 15.11.2023, complainant alongwith Abdul Waheed and Saifal were available at the lands, at about 09.00 p.m., they saw that accused Haji Panjoo, Dodo, Khiyali, Sawali, Muhbat and two unknown accused armed with kalashnikovs appeared there; challenged to the complainant party and thereafter accused Haji Panjoo Mazari directly fired from K.K which hit to Abdul Waheed on thigh of his left leg, then all the accused while making aerial firing ran away from the venue. The injured was taken to the hospital and thereafter complainant lodged F.I.R.”
3. Learned counsel for the applicant mainly contended that applicant has been falsely booked in the false case due to previous enmity, which has been admitted by complainant in the F.I.R. He next contended that there is delay of one day in lodging of the F.I.R. He further added that the injury assigned to applicant is not on vital part of body of the injured. Learned counsel further added that ingredients of Section 324 P.P.C do not attract to the present case, as there is no repetition of fire by the applicant or any other accused upon any member of complainant party, though they were completely on their mercy, as such intention of the accused to kill PW Abdul Waheed, and question of application of Section 324 P.P.C would be determined at the time of trial after recording evidence of prosecution witnesses. Per learned counsel, the injury assigned to present applicant has been declared as “Jurh Ghayr Jaifah Munaqqillah”, falling under Section 337-F (vi) P.P.C, which carries punishment of seven years, as such this injury do not fall within prohibitory clause of Section of 497 Cr.P.C. Learned further submitted that, co-accused Dodo and Khayali have been granted pre arrest and post arrest bail respectively by learned Court below. Lastly, learned counsel submitted that case has been challaned and physical custody of the applicant is no more required for the purpose of investigation.
4. Conversely, learned Advocate for complainant vehemently opposed grant of bail to applicant on the grounds that applicant has been nominated in F.I.R with specific role of making kalashnikov fire upon PW Abdul Waheed with intent to murder him. The delay, if any, in registration of the F.I.R has been fully explained by complainant. The injured has fully supported the version of complainant in his statement recorded by investigation officer under Section 161 Cr.P.C. The ocular version is also supported by the medical evidence and that there is also recovery of crime weapon, so also empty shell form place of incident. The 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.
5. Learned Addl. P.G. appearing for the State has argued in the same line, as argued by learned Advocate for complainant.
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 kalashnikov fire to PW Abdul Waheed hitting on his thigh. Such version of complainant is supported by injured/ PW Abdul Waheed in his statement recorded in terms of Section 161 Cr.P.C and it is also supported by medical certificate of the injured. However, it will make no difference that the injury caused by the applicant is at non-vital part; because for fire-arm injury the entire human body is vital part. A bullet, causing injury to the thigh of injured, may pierce in the abdomen 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 as envisaged in Section 497 Cr.P.C and in view whereof, the accused cannot be granted concession of bail in 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. Reliance in this regard can be had from case of Sheqab Muhammad v. The State and others reported in 2020 SCMR 1486. Moreover, there is also recovery of crime weapon from possession of the applicant, and an empty shell from scene of offence, which also connects him with commission of alleged offence. So for as contention of learned counsel that co-accused Dodo and Khayali have been granted bail is concerned, suffice it to say that case of those co-accused is on different footings.
7. In the light of above position, I am of the considered view that applicant/ accused has failed to make out his case for grant of post arrest bail; therefore, the bail application is dismissed.
8. Needless to state that, observations made hereinabove are tentative in nature and will not cause prejudice to case of either party at trial.
Judge
Ansari