ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

Cr.Bail.Appl.No.S- 43 of 2015

DATE ORDER WITH SIGNATURE OF JUDGE

26.10.2015.

Mr. Gulzar Ali Soomro, Advocate for applicant a/w applicant.

Mr. Ishrat Ali Lohar, Advocate for complainant.

Mr. Shahid Shaikh, A.P.G. for the State.

NAIMATULLAH PHULPOTO, J: Applicant/accused Ismail s/o Anwar Khan @ Ghanwar seeks pre-arrest bail in Crime No.149/2014 registered at Police Station B-Section, Dadu U/Ss 324, 452, 337-D, 114, 504, 147, 148, 149 PPC.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 23.11.2014 one Toufique Ahmed appeared at Police Station and lodged FIR, alleging therein that on 07.10.2014 he alongwith his father Din Muhammad, uncle Abdullah and other family members was present in the house. At about 6-15 p.m, it is alleged that accused persons namely 1. Saddam armed with repeater, 2. Noor Ahmed alias Jani armed with hatchet, 3. Momin armed with Danda, 4. Shafi Muhammad armed with pistol, all sons of Punhoon, 5. Punhoon empty handed and 6. Ismail s/o Ghanwar (present applicant) armed with repeater, tress passed into the house of complainant. It is alleged that accused persons abused the complainant party. Allegation against the present applicant/accused and co-accused Saddam is that they fired from their repeaters which hit to the complainant and he fell down. Thereafter, complainant/injured was taken to the Civil Hospitals, Dadu, Nawabshah, Hyderabad and lastly, he was referred to Liaquat National Hospital, Karachi for further treatment. FIR of the incident was lodged by complainant/injured Toufique Ahmed on 23.11.2014 at 1600 hours, it was recorded U/Ss 324, 452, 337-D, 114, 504, 147, 148, 149 PPC. Medical Board was constituted and report has been submitted. On the conclusion of investigation, challan was submitted against the accused persons U/Ss 324, 337-D, 452, 114, 147, 148, 149, 504 PPC. Accused Saddam was shown as absconder in the charge sheet.

3. Applicant/accused applied for pre-arrest bail before the learned 2^nd Additional Sessions Judge, Dadu, the same was rejected by him vide order dated 22.12.2014. Thereafter, applicant/accused approached this Court.

4. Mr. Gulzar Ali Soomro, learned advocate for applicant/accused mainly contended that there was delay in lodging of the FIR which has not been plausibly explained. It is also argued that injuries have not been specifically attributed to any of the accused. Lastly, it is argued that there is enmity between the parties. Case has already been challaned. Applicant/accused is entitled for grant of pre-arrest bail.

5. Mr. Shahid Shaikh, learned A.P.G. assisted by Mr. Ishrat Ali Lohar, learned advocate for complainant argued that delay in lodging of the FIR has been fully explained, after the incident injured was taken to different Hospitals for treatment. It is argued that applicant/accused had fired from his repeater which hit to the complainant on his vital part of the body. It is also argued that co-accused Saddam who is related to the applicant/accused is still absconder. Learned A.P.G. submitted that injury No.4 has been declared as Itlaf-i-salahayat-udw, the same is punishable for 10 years. It is argued that injured has become disabled. Lastly, it is argued that ingredients for grant of pre-arrest to the applicant/accused are not satisfied. In support of contentions, reliance has been placed upon the case reported as Riaz Ahmed v. The State (2009 SCMR 725).

6. I have carefully heard learned counsel for the parties and perused the material available on record.

7. It is clear from the contents of FIR that applicant/accused Ismail tress passed into the house of complainant after making preparation for hurt, he was armed with repeater. He alongwith co-accused Saddam fired upon the complainant which hit him. It is mentioned in the report of Medical Board that injured had sustained six firearm injuries. Injury No.1 sustained by complainant was on the back of left lower chest. Second injury was on the middle part of the left chest. Injury No.4 has been declared as Itlaf-i-salahayat-udw. It is the case of prosecution that accused tress passed after making preparation for hurt to the house of complainant. As regards to delay in lodging of FIR is concerned, apparently it has been sufficiently explained. Ingredients for grant of pre-arrest bail are missing in this case. Rightly reliance has been placed upon the case of Riaz Ahmed v. The State (2009 SCMR 725), wherein Honourable Supreme Court has observed as under:-

“We have heard learned counsel for the parties and have gone through the record so made available. It is not necessary for us to go into the details in respect of appearance of the petitioner or his counsel before the Special Judge, Anti-Corruption, for the reasons that High Court had also considered this case on merits as well and concluded on the basis of material as follows:-

“I have further concluded that the petitioner is specifically named in the FIR with serious allegations. Extraordinary relief of pre-arrest bail cannot be granted to such-like offenders. Learned counsel has failed to convince me that F.I.R. against him has been lodged due to the mala fides of the police or the complainant which is pre-conditions for grant of pre-arrest bail as laid down by the apex Court in the cases of Murad Khan v. Fazal Subhan PLD 1983 SC 82 and Zia-ul-Hassan v. The State PLD 1984 SC 192. Therefore, this petition is dismissed. A copy of this order be immediately dispatched to the concerned police station.”

Learned counsel for the petitioner insisted that there is mala fide on the part of the complainant therefore, the High Court, ought to have not dismissed the case but we are not inclined to entertain his arguments in view of the reason cited by the High Court which seems to be cogent and strong. Therefore, no inference is called for in the discretionary powers, exercised by the High Court.”

Co-accused Saddam who is related to applicant/accused is still absconding. Alleged offence falls within the prohibitory clause of Section 497 Cr.P.C. Prima facie, ample evidence/material is available with the prosecution to connect the present accused with the commission of such offence. Needless to mention that deeper appreciation of evidence is not warranted at bail stage. No malafide on the part of complainant or investigation officer have been pointed out. No case for grant of pre-arrest bail is made out. Consequently, instant bail before arrest application is dismissed and interim pre-arrest bail already granted to the applicant/accused is hereby recalled.

8. Needless to mention here that observations made hereinabove are tentative in nature and the trial Court while deciding the case on merits shall not be influenced upon by said observations.

JUDGE

Tufail