ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr. B.A. No.S-1139 of 2014.

DATE ORDER WITH SIGNATURE OF JUDGE

For hearing.

21.10.2015.

Mr. Imtiaz Ali Abbasi, Advocate for the applicants.

Applicants are present on interim pre-arrest bail.

Syed Meeral Shah, Deputy Prosecutor General.

Syed Tarique Ahmed Shah, Advocate for the complainant.

NAIMATULLAH PHULPOTO, J.- Applicants/accused Akhtar Ali Khaskheli and Akbar Khaskheli seek pre-arrest bail in Crime No.194/2014, registered at Police Station Market, Hyderabad, under sections 324, 109, 504, 337-F(iii), 34 P.P.C.

2. Brief facts of the prosecution case as disclosed in the F.I.R. are that on 16.10.2014, complainant Muhammad Saleem alongwith his friends Gulab Halepoto and Jan Muhammad Khaskheli, proceeded in his car towards City Gate. At 03.00 p.m. they reached near Bone Care Hospital, where it was noticed by the complainant that a car crossed his car, complainant stopped his car and saw that accused Akbar Khaskheli, his nephew Ghafoor Khaskheli and two unknown persons were sitting in the said car and they got down. It is alleged in the F.I.R. that accused Akbar was armed with pistol and he asked the complainant that as to why he was supporting Khalid. Complainant replied in negative. Thereafter, accused Akbar Khaskheli told to the complainant that he has been asked by his son Akhtar not to spare him. It is alleged that accused Akbar fired from his pistol, fire hit him at his right arm. Thereafter, accused persons drove away car while abusing to the complainant. Friends of the complainant informed about the incident to other friends of the complainant and complainant was removed to Civil Hospital, Hyderabad. On 17.10.2014, F.I.R. of the incident was lodged on 19.10.2014 at 1100 hours. It was recorded by ASI Police Station Market vide Crime 194/2014, under sectins 324, 109, 504, 337-F(iii), 34 P.P.C.

3. After usual investigation, challan was submitted against the accused under sections 324, 109, 504, 337-F(iii), 34 P.P.C.

4. Bail before arrest application was moved on behalf of the applicants/accused before learned IVth Additional Sessions Judge, Hyderabad. The same was dismissed vide order dated 20.10.2014. Thereafter, applicants/accused approached this Court for same relief.

5. Mr. Imtiaz Ali Abbasi, learned counsel for the applicants/accused contended that there is delay of three days in lodging of the F.I.R, for which no plausible explanation has been furnished. He has submitted that prior to lodging of the present F.I.R. against the applicants/accused, the daughter of accused Akbar had lodged F.I.R. against complainant Saleem on 13.10.2014 bearing Crime No.37/2014 of Police Station Tando Yousif, under sections 354-A, 452, 109 and 34 PPC. He also argued that daughter of accused Akbar has also filed suit before Civil & Family Court No.III, Hyderabad for recovery of the maintenance against Khalid Hussain, who is cousin of complainant Saleem. He has also argued that firearm injury is on non-vital part of the complainant; fire was not repeated and such injury is punishable for three years. He has next argued that because of lodging of F.I.R. against the complainant by the daughter of accused Akbar, he has lodged present F.I.R. against the applicants/ accused Akbar Khaskheli and his son Akhtar Khaskheli falsely due to matrimonial dispute. He further argued that eye-witnesses, namely, Gulab and Jan Muhammad have sworn their affidavits before the trial Court, in which applicants/accused have been exonerated. Lastly he has argued that case has already been challaned. In support of his contentions, learned counsel for the applicants/accused relied upon the cases Muhammad Tariq v. State (2014 P Cr. L J 647) and Khawar Ali v. State (2014 M L D 124 (Lahore).

6. Syed Meeral Shah, learned Deputy Prosecutor General assisted by Syed Tarique Ahmed Shah, learned counsel for the complainant, did not oppose the bail application for applicant/accused Akhtar Khaskheli, however, argued that specific part has been assigned to applicant/accused Akbar Khaskheli. He had fired upon complainant, which hit him at his arm. He has also argued that empty was recovered from the place of vardat. He further argued that mere filing of affidavits by PWs would not be sufficient to grant pre-arrest bail to the applicants/accused. Lastly, it is argued that ingredients for grant of pre-arrest bail are not satisfied in this case. Reliance is placed on the case of Riaz Ahmed v. State (2009 S C M R 725).

7. I have carefully heard the learned counsel for the parties and perused the relevant record particularly medical certificate of injured/ complainant Saleem.

8. In my considered view applicants/accused have made out a case for grant of pre-arrest bail for the reasons that there is delay of three days in lodging of the F.I.R., the same has not been plausibly explained. Medical certificate of injured reflects that injury has been declared by Medical Officer as Ghayr-jaifah Mutalahimah, punishable under section 337-F(iii) P.P.C. for 03 years RI and Daman. There is matrimonial dispute between the parties. Parties are closely related to each other. Prior to lodging of the present F.I.R, Mst. Noor Bano daughter of applicant/accused Akbar had lodged F.I.R. bearing Crime No.37/2014 of Police Station Tando Yousif, under sections 354-A, 452, 109 and 34 PPC against complainant Muhammad Saleem. She has also filed suit for recovery of maintenance before the Civil/Family Judge, Hyderabad against one Khalid Hussain, the cousin of complainant Muhammad Saleem. Copies of such F.I.R. and family suit are available on record. Applicant/accused Akhtar Khaskheli was not present at the time of incident. Leaned D.P.G. as well as counsel for the complainant have already recorded no objection for grant of pre-arrest bail to him. According to the medical certificate applicant/accused Akber had allegedly fired upon the arm of the complainant, it is non-vital part of body. Moreover, fire was not repeated prima facie, he had no intention to fire upon the vital part of the complainant for purpose of launching murderous assault. Challan has already been submitted in the Court. Ingredients for grant of pre-arrest bail are satisfied in this case. Reliance is placed upon the case of Muhammad Umar v. State (P L D 2004 Supreme Court 477). Relevant portion of the order is reproduced as under:-

“5. We have heard learned counsel for both the sides and have also gone through the record particularly the medical certificate. A 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.”

9. In view of the above facts and circumstances of the case, case for grant of pre-arrest bail to both the applicants/accused is made out. Accordingly, interim pre-arrest bail already granted to the applicants/accused by this Court vide order dated 21.10.2014, is hereby confirmed on same terms and conditions.

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

Bail application stands disposed of.

JUDGE