ORDER-SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. S- 340 of 2012.
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Date of hearing |
Order with signature of Judge |
20.03.2013.
Mr. Ghulam Dastagir A. Shahani, Advocate for applicant.
Mr. Muhammad Munaf Shaikh, Advocate for complainant.
Mr. Riaz Hussain Khoso, State Counsel.
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Muhammad Shafi Siddiqui, J: This bail application has been filed pursuant to crime No. 242/2011, under Sections 395, 324, 337-H (2), 148, 149 P.P.C, registered at P.S New Foujdari, Shikarpur.
2. The brief facts as narrated by complainant are that he alongwith prosecution witnesses were going towards their village on donkey-cart, he was having a torch in his hand and when they reached near Jaggan link road at 7.30 p.m., complainant saw on torch light and identified accused persons, namely, Abdul Sattar and Islam both sons of Meer Baig by caste Jaffery and four unidentified accused persons with open faces, from which accused Islam was armed with Kalashnikov and accused Abdul Sattar was armed with gun and one unidentified accused was armed with hatchet and remaining three unidentified persons were armed with gun and Kalashnikovs; came out and stood on the road near donkey-cart of complainant party and directed them to come down from donkey cart and accused Islam robbed Rs.2000/- from front side pocket of complainant and accused Abdul Sattar robbed one mobile phone of Nasaki china set of red color, sim No.0305-3874875, the complainant party resisted, on which accused party fired upon complaiantn party which hit to P.W Rehmatullah, Habibullah, Abdullah and Sikander and they become injured and the accused persons ran away after making fires in air. The complainant found injuries on thigh of both legs of witness Rehmatullah and left arms of witness Habibullah and left leg of thigh of witness Abdullah and right leg of thigh of witness Sikander. Whereafter complainant took witnesses to police station and after obtaining letter admitted them at hospital, whereafter came at Police station and lodged the report of above effect.
3. It is case of the applicant that no effective role was assigned to the applicant who was falsely involved. It is contended that the incident took place at night time and the identification was alleged to have been made on torch light and the injuries caused to prosecution witnesses are not on vital part of the body. It is contended that all witnesses are interested as being related to each other. It is further contended that there is delay of 7 hours in lodging the F.I.R, whereas police station is situated within distance of half an hour and approximately 3/4 kilometers. Learned counsel relied upon case of Muhammad Umar v. the State and another (P L D 2004 Supreme Court 477); in terms whereof it is observed by the Hon’ble Supreme Court that:
“The petitioner fired upon the outer side of the right leg’s middle part of injured Shahid Iqbal, therefore, prima facie we are of the opinion that he had no intention to fire on the vital part of injured Shahid Iqbal for the purpose of launching murderous assault. Be that as it may, now the challan has been submitted, trial has commenced, the petitioner is in custody since the date of his arrest and he is no more required for the purpose of investigation of the case, therefore, no useful purpose will be served by keeping him in custody”.
Consequently, in the above referred case the applicant was granted bail.
4. The other case, that is relied upon by the learned counsel is case of Saeed and another v. The State (2008 P.Cr.L.J 1139); in terms whereof it is observed as under:
“After hearing the learned counsel for the parties and going through the record, I have found that both the petitioners have been attributed injuries on non-vital parts of the bodies i.e. feet of the injured P.Ws.; the nature of injuries provides punishment of five years which does not fall within prohibition contained in subsection (1) of section 497, Cr.P.C. As far as the application of section 324 is concerned, prima facie, that requires further inquiry keeping in view the seat of injuries. My view is fortified by the judgment of the Hon’ble Supreme Court reported as PLD2004 SC 477. For what has been discussed above, this petition is allowed and petitioners are granted post-arrest bail subject to their furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac only) each and with one surety each in the like amount to the satisfaction of the learned trial Court.”
5. Lastly, the learned counsel for the applicant has relied upon case of Muhammad Mumtaz v. The State (2004 P.Cr.L.J 1875); in terms whereof it is observed as under:
“Although the injury was already caused with a fire-arm, yet as mentioned above, it was on a non-vital part and the accused had not repeated the shot although the victim was at his mercy. Under the circumstances of the case and in the light of the authorities reported as Muhammad Arshad v. The State Crl. L.J 433, and Muhammad Riaz v. The State 2000 Cr.L.J 681, it is clearly a case of further enquiry and thus the petitioner is entitled to the concession of bail. Accordingly the bail application is accepted and the petitioner is admitted to bail in the sum of Rs.50,000/- (fifty thousands) with two sureties in the like amount to the satisfaction of the learned trial Court.”
6. Conversely, learned counsel for the complainant has relied upon the examination-in-chief of one Abdul Qadir, the Investigating Officer of the case. Learned counsel for complainant has relied upon part of the examination-in-chief of the I.O, in terms whereof it is stated that the I.O arrested applicant/accused Abdul Sattar from Jaggan link road near Sim Shaakh and recovered robbed mobile phone of China company from his possession and sealed the same. The learned counsel for complainant submitted that since the recovery of the robbed article has been made, therefore, no case for grant of bail is made out.
7. Learned State Counsel adopted the arguments of the learned counsel for complainant.
8. I have heard the learned counsel and perused the record.
9. The only argument that has been raised by the learned counsel for complainant is that one red color Nasaki china set mobile phone was revered, however on a query as to whether the make number or registration number, as normally and usually available inside the mobile phone, is matched or not, the learned counsel is ignorant. Apparently, every china mobile phone set or any other mobile set do have an internal number, which number was neither shown to have been disclosed by the complaiantn nor such number is disclosed when the recovery was effected. It is matter of fact that a number of such mobile phones of china origin, namely, are Nasaki available in the market and alleged recovery of such mobile phone is not sufficient to decline the bail to the applicant, when the recovery itself is doubtful, as to whether it is the same set or it has been replaced. In addition to above there is delay of seven hours in lodging the F.I.R. The injuries allegedly caused are not on the vital part of the body and on the touchstone of the judgments referred above, the applicant is entitled for bail, which was accordingly granted by a short order and these are the reasons for the same.
Judge
Ansari/*