ORDER SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Crl. Bail Appln. No.S- 433 of 2012
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DATE |
ORDER WITH SIGNATURE OF JUDGE |
20.3.2013
Mr. Shahbaz Ali M. Brohi, advocate for applicant.
Mr. Syed Aijaz Ali Shah, advocate for complainant.
Mr. Riaz Hussain Khoso, State counsel.
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Muhammad Shafi Siddiqui.J.- This bail application filed by the learned counsel in respect of crime registered as F.I.R No.37/2012 Police Station Staurt Ganj under section 302, 34, PPC.
2. Brief facts of the prosecution case as disclosed in the FIR lodged by complainant Aijaz Ali Shah resident of Qumbar Muhalla Shikarpur with police station Stuart Ganj Shikarpur are that on 09.5.2012 at 02.30 hours, Manthar Ali Shah @ Dadan Shah is his cousin. About one week ago there was harsh wording of Wahab Dayo with Manthar Ali Shah over an accident of scooter, on which Wahab Dayo was annoyed and said to Manthar Dayo that he will see him. A day earlier complainant Syed Nazal Shah s/o Mohammad Shah (2) Imran Shah s/o Nazal Shah and Manthar Ali Shah @ Dadan Shah s/o Nazal Shah r/o Bhutta Muhalla, Shikarpur, were sitting together in Otaq of Manthar situated in Bhutta Muhalla at about 3.30 p.m. when (1) Wahab Abdul Ghafoor Dayo r/o Khabar Ji Khuhi Muhalla armed with pistol, (2) Sajjad @ Sijjoo s/o Ghulam Sarwar Shaikh r/o Waguno Gate Shikarpur with pistol (3) Irfan s/o Ishaque @ Biloo Qureshi r/o Dak Bazar entered in the otaq and Wahab and Sajjad @ Sijoo gave hakal to Syed Manthar Ali Shah @ Dadan Shah to be careful and they will not spare him and on which Wahab directly fired from his pistol at Manthar Ali Shah which hit him on his stomach below chest, Sajjad @ Sijoo fired from his pistol at Manthar Shah which hit him on elbow of right arm, thereafter all three accused went out from the Otaq towards southern side in street. Complainant party saw Manthar Shah alias Dadan Shah who received firearm injuries, blood was oozing and was injured. He went to police station Stuart Ganj Shikarpur and obtained letter for treatment from Civil Hospital, Shikarpur but he referred to Larkana, from where he was further referred to Karachi for treatment where on the way near Gambat at about 1.00 a.m. night he expired from where they came back and reached Civil Hospital Shikarpur at 4.00 a.m. from where after necessary formalities of postmortem took dead body to the house and after burial ceremony complainant came to police station and lodged the report to the above effect.
3. It is contended by the learned counsel that though the applicant has been nominated in FIR but as far as the injury allegedly caused by the applicant is concerned that could not be attributed to be fatal or contribute towards sad demise of the deceased. The injury attributed to the applicant was only to the extent of causing injury on his elbow of the right arm which is the non vital part and hence the applicant cannot be said to be involved in the murder or such injury cannot be said to be one which is considered as a fatal injury to the deceased. In addition learned counsel submits that there is delay in lodging FIR and no plausible explanation has been provided in lodging delayed FIR. Learned counsel for the applicant has relied upon the case of Masood v. State 2010 P.Cr.L.J 600 in terms whereof it is observed by a learned Single Judge of this Court that the injury alleged to have been caused by the accused was on elbow of the right arm and the medical report stated that it was only muscle deep. FIR in the aforesaid case further reveals that it was the co-accused who fired with his shotgun and one of the bullet went inside the chest and the medical report was clear that death was caused due to vital organ injury result of firearm caused by the co-accused. Relying on the aforesaid case law the learned counsel for the applicant submits that the injury which is allegedly caused by the applicant is in the similar way caused injury at the elbow which went through and through. Learned counsel for the applicant has further relied upon the case of Shah Nawaz v. State 2008 SCMR 1436 in terms whereof the Honourable Supreme Court observed as under :-
“From the record, we find that the cause of death, as certified by Medical Officer in the post-mortem report, appears to be head injury plus multiple fractures and haemorrhage (probably from all vessels). Prima facie, it appears that there were fractures on both forearms, left humerus and left patella and wound on right forearm and left leg, but the fact remains that while examining the role of petitioner Shah Nawaz, his case would be distinguishable from rest of the accused and, in our opinion he was rightly found not entitled to the grant of bail. As regards, the role played by petitioners Younas and Yaqoob, their presence at the time of occurrence cannot be disputed as would be reflected from the F.I.R. of the counter case. Injuries inflicted by them prima facie do not appear to have directly contributed to the immediate cause of death of the deceased.
4. Both the petitioners are behind the bars for the last more than eight months without the fate of trial in near future, as according to the State counsel three accused are still absconding and at large. Learned counsel for the complainant and the State are not in a position to distinguish the case of petitioners Younus and Yaqoob from those in whose favour discretion of grant of bail has been exercised by the High Court. Tentatively assessing the material on record, we are of the view that the case of Younus and Yaqoob would call for further enquiry and they deserve their release on bail also on account of identical part played by them with those who have been admitted to bail. This approach would be legally justified on the principle of consistency.
4. Learned counsel for the complainant has submitted that the applicants have formed an unlawful assembly and in fact it is a joint intention of both the applicants i.e. Sajjad and Wahab who came at the Otaq with pre-determined mind to kill the deceased. Learned counsel submitted that in view of the judgment of Hub Ali v. State 2013 P.Cr.L.J 25 the applicant has not made out a case for the grant of bail.
5. I have heard the arguments and gone through the record.
6. It is clarified by the medical report that the cause of death was due to injury on the vital part of the body i.e. Stomach such report is dated 14.5.2013.
7. Prima facie, it appears that the injury allegedly caused by the applicant is at the elbow of the right arm which went through and through and the medical report that has been read over by the learned State counsel is in fact to the extent that the fatal injury was one which is caused by Wahab which is the stomach injury in view of the above it has become a case of further enquiry despite the fact that the applicant’s bullet was allegedly hit at the elbow he, at this stage could not be presumed to have come with the intention to kill unless such contention is proved in evidence.
8. If any additional citations are required one may look at (i)Muhammad Umar v. State PLD 2004 SC 477 and (ii)Muhammad Mumtaz v. State 2004 P.Cr.L.J 1875. In the case of Muhammad Umar (supra) Honourable Supreme Court held as under:-
“Although the injury was allegedly 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 1997 Crl.LJ 433 and Muhammad Riaz v. The State 2000 Cr.LJ 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 thousand) with two sureties in the like amount to the satisfaction of the learned trial Court.
In the case of Muhammad Mumtaz (supra ) it was held as under:-
“Perusal whereof indicates that allegedly the petitioner fired upon the outer side of the right leg’s middle part of the injured Shahid Iqbal, therefore, prima facie, we are of the opinion that he had no intention to fire upon the vital part of the injured Shahid Iqbal for the purpose of launching murderous assault. Be that as it may, now the challan has been submitted, trial has commenced, petitioner is in custody with effect from the date of his arrest and is no more required for the purpose of investigation of the case, therefore, no useful purpose will be served by keeping him in custody.
Thus for the foregoing reasons, petition is converted into appeal and allowed. Consequently, petitioner Muhammad Umar is directed to be released on bail subject to his furnishing surety bonds in the sum of Rs.50,000 with two sureties and P.R. in the like amount to the satisfaction of the Trial Court concerned.
9. In view of such facts the applicant is admitted to bail subject to furnishing solvent surety in the sum of Rs.300,000 with P.R bond in the like amount to the satisfaction of the trial Court.
Judge