ORDER SHEET

 IN THE HIGH COURT OF SINDH AT KARACHI

        Cr. Bail Appln. No. 593 of 2016                 _____________________________________________________

Date                      Order With Signature Of Judge

__________________________________________________________

For hg of bail application

 

20.01.2017.

 

          Mr. Salahuddin Khan Gandapur, advocate for applicants.

          Mr. Muhammad Asif, advocate for complainant along with

complainant.

Mr. Abdullah Rajput, A.P.G.

 

 

 

ZAFAR AHMED RAJPUT, J:-Having rejected his earlier application bearing Bail Application No. 948 of 2016 for non-prosecution, by the learned 4th Additional Sessions Judge, Karachi-East, applicants/ accused, namely, KashifIlyas and SaqibIlyas, both sons of Muhammad Ilyashave sought pre-arrest bail in Crime No. 161/ 2016, registered at P.S. Aziz Bhatti, under section 324/ 34 P.P.C.Applicants were admitted on ad-interim bail on 03.05.2016, now they seek confirmation of their bail.

 

2.       The allegation against the applicants/ accused, who are residing in front of house of the complainant, are that on 23.04.2016 at about 06:30 p.m., they duly armed with TT Pistols, along with other unknown persons dragged the complainant and accusedKashif strangled his throat with intention to cause death.

 

3.       Learned counsel for applicants has mainly contended that the applicants are innocent and have falsely been implicated in this case with ulterior motives by the complainant, who is an Advocate by profession and there is every apprehension if in case the applicants are arrested, they shall be subjected to unjustified physical and mental torture; that earlier on 29.04.2016 on application for pre-arrest bail of applicants bearing No.948/2016 was filed by the applicants in aforementioned  Crime, which was dismissed by the learned 4th Additional Sessions Judge, Karachi-East due to non-appearance of applicants before the trial Court and their non-appearance was neither deliberate nor intentional but due to the fact that the complainant is a practicing lawyer, many advocates stormed in the trial Court due to which the applicants rescued themselves from the clutches of advocates, so that they may not be humiliated, disgraced or maltreated from the hands of advocates, hence under the extraordinary circumstances, the applicants approached this Court through instant criminal bail application; that offence under section 324/ 34 P.P.C. cannot be spelt out from the contents of F.I.R. against the applicants; that even the interim Medico-Legal Report suggests only marks of bruise and abrasion on the knee and neck of the complainant and till date the complainant failed to appear before the concerned Medical Officer for issuance of final medical report, hence the case of applicants falls within the ambit of further inquiry as envisaged in subsection (2) of section 497 Cr. P.C., hence they are entitled for the concession of bail.

 

4.       On the other hand, the learned counsel for the complainant has opposed the grant of pre-arrest bail to applicants/ accused on the ground that they had attempted to strangle the throat of complainant with intention to commit his murder. As regards, the final medical report, the learned counsel has submitted that the complainant was not issued any notice by the concerned Medico-Legal Officer, therefore, he could not make his presence before him. He added that the interim Medical Report shows that there were marks of abrasion and bruises on the knee and neck of the complainant, which shows that such attempt for strangulation was made by the accused persons, hence they are not entitled to the concession of bail.

 

5.       The learned A.P.G. while adopting the arguments of the learned counsel for the complainant has also opposed the instant application on the ground that the accused have been charged with commission of offence falling under section 324 P.P.C., which is punishable for ten years and no case of malice and ulterior motives has been made out, therefore, they are not entitled for the concession of pre-arrest bail.

 

6.       Heard the learned counsel for the parties and perused the material available on record.

 

 

7.       It is an admitted position that the applicants/ accused are residing in front of house of the complainant and a quarrel took place between the parties over the plantation. It is alleged that the accused were duly armed with pistols but they did not use the same. Had it been intention of the accused to kill the complainant then there would have been using of fire arms. The alleged injuries of bruises and abrasion on the knee and neck of the complainant hardly falls within the definition of “Ghayr-jaifadamiyah”, and being punishable under section 337-F P.P.C. up to one year,the same is bailable under the schedule of offences; hence, it is yet to be seen if applicants/ accused, in the circumstances, had any intention to kill the complainant and such question could only be determined at trial. As such, case of the applicants is covered under sub-section (2) of Section 497 Cr. P.C., requiring further inquiry into their guilt.

 

8.       Besides, it may be observed that the applicants were granted ad-interim pre-arrest bail by this Court on 03.05.2016 and, admittedly, they have not misused the concession of interim pre-arrest bail and they are regularly attending the trial Court. Under the circumstances, the interim pre-arrest bail granted to applicants is confirmed on the same terms and conditions.

 

9.       Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicants on merits.

 

                                                         

                                                                             JUDGE