ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 1834 of 2016
Applicant: Sadaqat Asghar Hussain s/o. Asghar Hussain,
through Mr. Hasnain Ali Chohan,
Advocate.
Respondent: The State, through Mr. Abdullah Rajput, APG.
Complainant: Present in person.
Date of hearing: 23.01.2017
Date of order: 23.01.2017
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O R D E R.
Zafar Ahmed Rajput, J:- Having rejected his earlier bail application bearing No. 2282 of 2016 by the learned Additional Sessions Judge-VIII, Karachi West, applicant/accused Sadaqat Asghar Hussain s/o. Asghar Hussain, through instant Criminal Bail Application has sought pre-arrest bail in Crime No. 246 of 2016, registered at P.S. Orangi Town, Karachi South, under Section 336/34 P.P.C. Applicant/ accused was admitted to interim pre-arrest bail on 23.12.2016, now he seeks confirmation of his bail.
2. Precisely, the facts of the prosecution case are that complainant Muhammad Yousuf Lodhi lodged aforementioned F.I.R. on 07.12.2016, stating therein that he had purchased one water pump from Saddam Machinery Trade Shop, situated at Orangi Town and since there was a fault in the water-pump, on 13.11.2016 at 1300 hrs., he disclosed it to accused Sadaquat, who asked him to leave the pump with him and take the same in the evening after paying labour charges. The compliant found the pump un-repaired but accused Sadaquat demanded Rs.400/- rupees, as labour charges, on that the complainant asked him to receive Rs.200/- as charges, on that accused started maltreating him and suddenly Saddam and Sadaquat gave blow of something on his right eye, which started bleeding. Thereafter, the complainant first went to Ziauddin Hospital for first aid and then to police station for report, vide Entry No. 41 dated 13.11.2016 at 2050 hours where duty officer SIP Noor Ahmed from issued him a letter and forwarded him to Abbasi Shaheed Hospital for treatment. On 07.12.2016, MLO doctor Muhammad Saleem issued medical report disclosing the injury of complainant as “ITLAF-E-SALAHIYAT UDW”, punishable under Section 336/34 P.P.C. It is thereafter the instant F.I.R. was lodged by the complainant.
3. The learned counsel for the applicant/accused has mainly contended that the applicant is innocent and has falsely been implicated in this case by the police at the behest of the complainant; that the quarrel was started by the complainant who also beaten the applicant on point of labour charges and then registered a false case against him and his brother Saddam, who was not present at the time of alleged incident; that there is no single eye witness of the incident; that there is an inordinate delay of 24 days between the incident and registration of F.I.R. which has not been explained by the complainant; that the applicant has made out a case for further enquiry as such, the interim pre-arrest bail granted to the applicant may be confirmed. In support of his contentions, learned counsel for the applicant has placed his reliance upon the cases of Muhammad Shafiq and 6 others vs. The State (2016 MLD 561), Zaigham Ashraf vs. The State and others (2016 SCMR 18) and Manak vs. The State and another (2016 YLR Note 94).
4. On the other hand, learned APG has vehemently opposed this application on the ground that the applicant has caused hurt to the complaint on his right side eye due to which he has lost eye sight of his one eye; that after receiving sever injury at the hands of accused persons the complainant in emergency went to Ziauddin Hospital and then he reached police station where entry bearing No. 41 was recorded on 13.11.2016 at 2050 hours and then he went to Abbasi Shaheed Hospital on 14.11.2016 for further treatment and after issuance of medico-legal certificate by the concerned medico-legal officer the instant F.I.R. was lodged; therefore, the delay has properly be explained; that the offence carries punishment of Qisas, or arsh, and imprisonment of either description for 10 years, which comes within the prohibitory clause of section 497(1) Cr.P.C.; that no alternate punishment is provided; therefore, no case of lesser punishment arises. He has prayed for dismissal of bail of the applicant.
6. I have heard the learned counsel for the parties and perused the material available on record.
7. There is no denial to the fact that the alleged incident has taken place in the shop of applicant in which the complainant has permanently lost vision of his right eye due to trauma. The medico-legal report suggests that some hard and blunt substance had hit on the eye of the complainant due to which he also got five stitches besides loosing vision of his right eye. The alleged offence is punishable under Section 336 P.P.C. for Qisas, or arsh, and imprisonment of either description for 10 years. The learned counsel for the applicant has not been able to point out any special feature of the case entitling the applicant to grant of extra ordinary concession of pre-arrest bail. It is now settled principal of law that in order to justify the grant of anticipatory bail, the accused is required to show that he apprehends his arrest on account of ulterior motives. One of the main considerations for grant of bail is whether the prosecution is motivated by malice so as to cause irreparable injury to citizen’s reputation and liberty. The accused approaching the Court of law for grant of anticipatory bail is required to show that he is falsely implicated for extraneous consideration and ulterior motives are behind his apprehended arrest. The accused person becomes entitled for this concession on fulfillment of these conditions. Learned counsel for the applicant/accused has remained unable to persuade me to hold that accused had no concern with the alleged offence. Hence, in the instant case the pre-requisites for such concession i.e. malice and ulterior motives either on the part of the complainant or the police are conspicuously missing. The case-law cited by the learned counsel for the applicant proceed on different facts and do not advance his case for the grant of pre-arrest bail.
8. Resultantly, there being no merit in this criminal bail application, the same is dismissed and the interim pre-arrest bail allowed to the applicant/accused is hereby recalled.
JUDGE
Athar Zai