Date. Order with signature of Judge
Aijaz Ali v/s The State.
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Learned counsel for the applicant argued that for one and the same incident two F.I.Rs were lodged. One by the complainant side in which the place of incident is at Dilber Hotel while from the accused / applicant side one Dildar Ali has lodged the F.I.R. in which the place of incident is shown as Indus Highway opposite Dilbar Hotel. He further argued that according to the mashirnama injured Hyder Bux has received bullet injury under the left ear but the final medical report showing the contrary view. Previously an F.I.R. was lodged under Section 302 P.P.C. by the co-accused, therefore, in order to pressurize the applicant a false F.I.R. has been lodged. The incident mentioned in the F.I.R. is highly doubtful as there was some political rivalry and personal enmity between the parties. There is inordinate delay of five (05) hours in lodging the F.I.R. The applicant is a prominent businessman of the locality with political affiliation and recently he has been elected as Chairman in the local bodies elections, therefore, due to political motivation and enmity the police has engineered and lodged a false F.I.R. The learned counsel further argued that in the final medical certificate, the injury as Shajjah-i-munaqqilah has been shown which falls under Section 337-A(iv) P.P.C. for which the accused is liable to ‘arsh’ which shall be fifteen percent of the ‘diyat’ and may also be punished with imprisonment of either description for a term which may extend to ten years as ‘ta’zir’. Learned counsel further referred to Section 337-N P.P.C. wherein the cases have been defined in which ‘qisas’ for hurt shall not be enforced. Learned counsel particularly referred to sub-Section (2) which provides that notwithstanding anything contained in this Chapter in all cases of hurt, the Court may, having regard to the kind of hurt caused by him in addition to payment of ‘arsh’, award ‘ta’zir’ to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal [or the offence has been committed by him in the name or on the pretext of the honour], A proviso is also attached that the ‘ta’zir’ shall not be less than 1/3 of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour.
The learned counsel further argued that the final medical certificate was challenged and subsequently a Special Medical Board was constituted by the Director General Health Services Sindh, which submitted the report on 25.05.2016. The report shows major contradictions to the earlier final medical report which makes the case of further inquiry and the applicant is entitled to the grant of bail. He referred to 2011 SCMR 1392 (Saeed Khan v. The State), (ii) PLD 2009 Lahore 312 (Ali Muhammad v. The State), (iii) 2006 YLR 1591 (Muhammad Saeed v. The State), (iv) 2008 SCMR 1621 (Umar Hayat v. The State and others), (v) 2008 SCMR 1235 (Niaz Ahmed v. The State), (vi) 2011 SCMR 1997 (Gul Din v. The State) and (vii) 2012 SCMR 887 (Mazhar Hussain v. The State).
On the other hand the learned counsel for the complainant argued that the applicant with the intention to commit the murder of Hyder Bux made straight fire from his pistol which hit him below the ear due to which he fell down which shows the intention of the applicant that he attempted to commit murder of victim Hyder Bux. He further argued that the role attributed to the applicant is clearly defined in 161 Cr.P.C. statement of the victim duly corroborated by two prosecution witnesses. The ocular testimony is also corroborated by medical evidence. According to the memo of place of incident 36 empty bullets of pistol and 12 empty cartridges of gun were recovered. The prosecution witnesses namely Sohrab and Ghulam Muhammad in their 161 Cr.P.C. statements have also supported the case of the prosecution without any ambiguity.
The learned D.P.G. also vehemently opposed the grant of bail to the applicant / accused on the ground that specific role of causing firearm injury on vital part of the body has been assigned to the applicant / accused. So far as the counter version of the F.I.R. is concerned it is immaterial at this stage when not only the statement of the injured Hyder Bux, but also the prosecution witnesses have supported the version of the complainant which is also corroborated with the medical evidence. In so far as the plea of learned counsel for the applicant that this is the case of Shajjah-i-munaqqilah which falls under Section 337-A(iv) P.P.C, the learned D.P.G. argued that the case has not been registered under Section 337-A(iv) P.P.C. alone but under Section 324 P.P.C. also with some other sections of P.P.C. He further argued that trial Court after considering the material available on record rightly dismissed the bail application.
Heard the arguments and perused the record.
The arguments advanced by the learned counsel for the applicant are mostly related to the Medical Board report. The provisional medical certificate was issued on 1.1.2016 which shows that:
“(A) Lacerated wound of firearm with inverted margin 1 cm in diameter, over posterior of neck (left) i.e. entry.
(B) Lacerated wound of firearm with everted margin 1 cm in diameter over left cheek i.e. exit.”
The learned counsel further argued that since the applicant was not satisfied with the findings of the final medical report therefore, the medical report was challenged and a Special Board was constituted.
On 25.5.2016 Special Medical Board comprising eight (08) experts submitted the report. According to the findings of the Special Medical Board they found as under:
“(A) Irregular scar measuring 0.5 x 0.5 cm over posterior lateral aspect mid of left side of neck partly mobile non tender.
(B) Irregular scar measuring 2 x 1.5 cm over left side of face above chin partly mobile non tender.”
“X-Rays done at Services Hospital Hyderabad on 6.4.2016.
X-Ray Face Mandible AP & Lat view:-
Comunited fracture initially the ramus on body of left mandible with multiple bony fragments.”
“Impression: As suggested by Radiologist, looks like firearm injury.
Opined:- Dr.Ghulam Qadir Buledi Professor of Radiology LUM&HS Jamshoro.”
“OPINION: The Members of Special Medical Board are of the unanimous opinion that the medico legal certificate number mentioned above in respect of injured Hyder Bux s/o Mir Dost Khoso issued by Dr. Salahuddin Ex-MLO, LUH Hyderabad, posted as Senior Medical Officer at Services Hospital Hyderabad is correct.”
If I compare to the final report given by the MLO with the Medical report compiled by the Special Medical Board, apparently there is no material contradiction which otherwise cannot be considered at this stage by this Court for grant of bail to the applicant but all these aspects are to be seen by the trial Court during the trial. At this stage what is material is the finding of the Special Medical Board which after due deliberation reached to the conclusion that the victim Hyder Bux sustained firearm injury and the final Medico Legal Certificate issued by Dr. Salahuddin was found correct.
The learned D.P.G. pointed out the statement of victim, who has clearly stated in his 161 Cr.P.C. statement that he was injured due to fire made by the applicant and his statement was also corroborated and supported by two eye witnesses.
So far as the plea of the learned counsel for the applicant that the injury is Shajjah-i-munaqqilah which falls under Section 337-A(iv) P.P.C. liable to be ‘arsh’ and since the applicant is not a previous convict, habitual or hardened, desperate or dangerous criminal, therefore, he is entitled to the grant of bail, I am not convinced with the arguments of learned counsel as this is not the case of injury alone mentioned in Section 337-A(iv) P.P.C. but in the F.I.R. Section 324 P.P.C. is also mentioned along with some other Sections of P.P.C.
In the case of Ali Muhammad (supra), the accused applied for pre-arrest bail who was the husband of the complainant. The facts of the case shows some domestic violence based upon estranged matrimonial relations. The case was only confined to the interpretation of Section 337-N(ii) P.P.C. and affect of its proviso as inserted by Criminal Law (Amendment) Act 2004.
The case of Muhammad Saeed (supra), was also confined to Section 337-N P.P.C. Both aforesaid case law cited by the learned counsel are distinguishable and not helpful to the case of the applicant.
In the case of Umer Hayat (supra) the apex Court held that accused allegedly fired 4/5 shots from his pistol upon the complainant out of them one fire hit at his left knee and such injury fell within the ambit of Section 337-F(v) P.P.C. This case is also distinguishable to the facts and circumstances of the case in hand as apparently the applicant / accused made straight fire on the vital part of the body of Hyder Bux which offence falls within the scope of Section 324 P.P.C.
In the case of Saeed Khan (supra), the apex Court granted bail to the applicant on the ground that he was not nominated in the F.I.R. in any capacity. The complainant had also got recorded his supplementary statement wherein he had nominated the accused. It was also stated by the complainant that till then he had not reported the incident to the police. The apex Court found glaring contradictions between the F.I.R. / supplementary statement and Medico Legal Certificate. This precedent is also distinguishable to the facts and circumstances of the case in hand.
The case of Gul Din (supra), the counter version of the occurrence was taken into consideration but in this case also the apex Court found that the accused was not attributed any specific role.
The learned counsel further referred to the case of Mazhar Hussain in which the apex Court found that the accused was not charged for firing shot at the deceased and was only charged for inflicting an injury on the head of the deceased with the sharp side of his hatchet. The injury in the first instance was mentioned as ‘lacerated’ but changed as ‘incised’. The apex Court gave the observation whether charge in the matrix of the case could be held to be exaggerated and whether the accused in view of the role assigned to him could be held vicariously responsible for the murder of the deceased. It was further observed that petitioner was not charged for any firing on the deceased but was only charged for inflicting an injury on the head of the deceased with the sharp side of his hatchet. In the present case the allegation against the applicant is of making straight fire upon the victim on the vital part of his body.
The counsel for the applicant also pointed out that F.I.R. No.02 of 2016 in respect of the same incident lodged by Dildar and argued that on the day of incident at about 1830 hours after visiting from Dad Shaheed Shrine coming back in vehicles when they reached Indus highway, opposite Dilbar Hotel Aliabad, peoples thrown stones on their car and made straight fire upon Dildar, Aijaz Ali Zanwar and other relatives but the applicant and co-accused remained saved therefore, on the same day aforesaid F.I.R. was lodged. The purpose of highlighting this F.I.R. is to show that there was a previous enmity and political rivalry between the parties so the applicant at this stage wants to take the advantage of counter version of the same incident. The counter F.I.R. is not always sufficient to accept the plea of bail but each case has to be seen in its own peculiar circumstances. The counsel for the applicant did not deny the incident but tried to make out a case of Shajjah-i-munaqqilah and also tried to point out some defects in the Medico Legal Certificate and report of Special Medical Board which I have already dealt with in preceding paragraph. However, the fact remains that in the incident clear attack was made on the vital part of the body of the victim and tentatively the possibility cannot be ruled out that this was an attempt to commit murder of making straight fire on the vital part of the body of the victim. So far as the counter version is concerned that is to be seen by the trial Court and if some offence has been made out, naturally the law will take its own course. But at this stage I am not inclined to grant bail on the mere assertion of the counter F.I.R. in which no injury was sustained by any person of the applicant party.
It is well settled that deeper appreciation cannot be made out at bail stage whereas after going through the material placed before me and hearing the arguments of the learned counsel appearing for the parties as well as D.P.G. I am of the firm view that at present no reasonable grounds are available to believe that applicant is not involved in the crime in question, hence, his bail application is dismissed.
However, the trial Court is directed to record the evidence of the complainant and the injured Hyder Bux and the two prosecution witnesses within a period of forty five (45) days. After recording the evidence of the prosecution witnesses if any fresh ground is found available to the applicant, he may move fresh bail application before the learned trial Court.
The observations made in the order are tentative in nature and will not prejudice the case of either party.
JUDGE
A.