IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.1171 of 2012
Order with signature of Judge
Mr. Habib Ahmed, advocate for the applicant.
Mr. Salahuddin Khan Gandapur, advocate for the complainant.
Mr. Abrar Ali Khichi, APG.
O R D E R
Aqeel Ahmed Abbasi, J: Being aggrieved and dis-satisfied with the order dated 17.10.2012 passed by the learned 3rd Additional District and Sessions Judge, Karachi West, in Bail Application No.691 of 2012, Crime No.504/2012 under section 324/34 PPC registered at P.S. Jackson, Karachi, whereby bail application filed by the applicant was refused, the applicant has filed instant bail application under section 497 Cr.P.C seeking his release on bail subject to furnishing surety.
2. Brief facts as stated in the FIR are as under:
“Reference to the Report No.36 of Roznamcha of the Police Station, I SI Abdul Sattar Marwat came back to police station, after obtained the statement under Section 154 Cr.P.C. of the injured from Civil Hospital Karachi. Copy of the Statement 154 Cr.P.C. as under. From Emergency Ward Civil Hospital Karachi. Statement under Section 154 Cr.P.C. of Meher Muhammad S/o Mahabat Khan resident of B-II B/114/I Batta Village Kimari Karachi. I do business of sale purchase of vehicles. Today I was present in my house, my business partner Ali Asghar S/o Haji Muhammad Younus called me in his shop situated at Masan Chowk at about 11.00 AM we started settle the accounts. During the settlement of account in respect of plots, hard words exchanged between us, which increased to exchange of blows. He caught hold my necklace and maltreated me and he brought pistol from his house situated near his shop and started firing. Due to firing a bullet hit my right feet at calf. Bullet passed through the leg. I become injured. My brother Noor Muhammad brought me in Civil Hospital, where I am under treatment. My complaint is against Ali Asghar S/o Muhammad Yousuf with intention to kill me by firing and to cause me injury.
The applicant was reportedly granted ad-interim pre-arrest bail vide order dated 04.06.2012 by the trial Court, which was dismissed on 11.07.2012, whereafter the applicant surrendered before the Court on 24.08.2012 and since then he is behind the bar. Challan has been submitted, charge has been framed, whereas no evidence has been recorded so far.
3. It is contended by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the instant crime, whereas no recovery of the weapon has been effected from the possession of the applicant/accused. Per learned counsel, even the medical report submitted in the instant case showing an injury under section 337-F(vi) was challenged and a Board was constituted. The injured was directed to appear before the Service Hospital, Karachi, for the purpose of X-Ray, however, the complainant did not approach there. Whereafter, the injured having suffered from the dengue fever expired on 19.11.2011. Per learned counsel, even from the perusal of the contents of FIR the charge under section 324 PPC against the applicant is not made out as there was no intention of the applicant to kill the complainant as the alleged injury is allegedly the result of singular shot which is not on the vital part of body. Per learned counsel, there is no eye witness of the alleged incident, whereas one Muhammad Saleem Khan, who is related to the complainant, has been shown by the prosecution as witness, but such fact was not stated in the FIR. Per learned counsel, the offence does not fall within the prohibitory clause and the case of the applicant is of further inquiry, hence the applicant, who is behind the bar for more than six months is entitled to be released on bail subject to furnishing solvent surety. In support of his contention, learned counsel has placed reliance.
1. Muhammad Arshad v. The State 2011 MLD 1187
2. Muhammad Khurshid v. The State PLJ 1996 Cr.C. (Lahore) 1837
3. Muhammad Umar v. The State and another PLD 2004 Supreme Court 477
4. Muhammad Ilyas v. The State and another 2010 P Cr.LJ 379
5. Sarwar Khan and another v. The State 2010 P Cr.LJ 381
6. Syed Akbar Shah v. Fazal-e-Rehman and 2 others 2010 YLR 2322
7. Muhammad Altaf Khan and 2 others v. The State and another 2011 P Cr.LJ 1635
4. Conversely, learned counsel for the complainant has opposed the grant of bail to the applicant and submits that the FIR has been lodged promptly, whereas the accused shot at the complainant with intent to kill, as he has brought the pistol from his house and fired at the complainant, who received bullet injury in his right shin. It is further contended that the intention of the applicant/accused will be examined after recording evidence, hence the applicant may not be released on bail at this stage. In support of his contention, the learned counsel for complainant has placed reliance in the following cases:-
1. Ghulam Rasool v. Abdul Ghani and 3 others 1999 P.Cr.L.J 2090 (Lahore)
2. Haji Nazeer Ahmed v. Habib and another 1999 P.Cr.L.J 2094 (Lahore)
3. Sadullah v. State and another PLJ 2008 Cr.C (Peshawar) 1080
4. Malang Said v. The State and another 20054 P.Cr.L.J 1087 (Peshawer)
5. Inayat v. The State 2002 SCMR 129.
5. Learned APG has also supported the case of the complainant and submitted that the applicant has been specifically nominated in the FIR, therefore, he may not be released on bail.
6. I have heard both the learned counsel as well as APG and perused the record of the case, it appears that the alleged incident was the result of exchange of hard words between the applicant and the complainant during the settlement of some business account. Admittedly, the injury is on the non-vital part of the body, whereas the MLO report was challenged and Board was constituted, whereas the injured was directed to appear before the Services Hospital, Karachi, for the purposes of X-Ray, however, he did not appear for such purpose and subsequently on account of dengue fever, and admittedly not because of the alleged injury died on 19.11.2011. The case of the prosecution cannot be treated as free from doubt, whereas the matter requires further inquiry. The ratio of the case law relied upon by the counsel for the applicant is attracted to the facts of this case, whereas the facts and the ratio of case law as relied upon by the counsel for the complainant are not squarely applicable to the instant case.
6. I am of the opinion that the applicant has made out a case for grant of bail at this stage as the matter requires further inquiry. Accordingly, applicant is admitted to bail subject to furnishing surety in the sum of Rs.2,00,000/- (Rupees Two Lac Only) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
7. Needless to observe that the observations made hereinabove are tentative in nature and the learned trial court shall not be prejudiced by any such observations and shall decide the case on merits in view of the evidence available on record.