ORDER SHEET

 IN THE HIGH COURT OF SINDH AT KARACHI

                       Cr. Bail Application No. 1344 of 2016

_____________________________________________________

Date                      Order With Signature Of Judge

__________________________________________________________

For hg of bail application

19.01.2017.

          Ms. ShaziaTajRao, advocate for applicant.

          Mr. Nasir Ahmed, advocate for complainant.

          Mr. Abdullah Rajput, A.P.G.

ZAFAR AHMED RAJPUT, J:-After rejection of his earlier application bearing Cr. Bail Application No. 1954 of 2016, vide order dated 07.0902016, passed by the learned 7^th Additional Sessions Judge, Karachi-East, applicant Behram Nasir son of Nasir Behram, through instant bail application, seeks post arrest bail in Crime No. 99 of 2016, registered at P.S. Soldier Bazar under section 324/ 34 P.P.C.

2.      As per the aforementioned F.I.R., lodged by complainant Mst. Nabeela wife of Abdul Aziz, the allegation against the applicant/ accused is that on 07.04.2016 at about 08:30 p.m. he along with Ummekulsoom, his mother Shehnaz alias Rabia, Umair alias Musani reached the house of the complainant and on the instigation of his said mother, hecaused fire armed injuries to complainant with the intention to kill her on her right leg’s calf and left leg’s thighs in presence of PWsMst. Quart-ul-Ain and Mst. Malka and then they fled away from the occurrence.

3.      Learned counsel for the applicant has mainly contended that the applicant is innocent and has falsely been implicated in this case; that the F.I.R. is afterthought as there is a delay of 20 hours in lodging of the F.I.R., which has not been explained by the complainant; that no tangible or direct evidence is available with the prosecution to prove the instant case against the applicant; that the alleged injury of complainant has been declared by the Medico-legal Officer asGhayr-jaifahmutalahimah, which being punishable under section 337-F (iii) P.P.C. for three years, does not fall within the prohibitory clause of section 497 Cr. P.C. and so far the application for section 324 P.P.C. is concerned, it is a fit case of further inquiry; hence, the applicant is entitled to the concession of bail. In support of his contentions, learned counsel for the applicant has relied upon the cases ofREHAN V. THE STATE (2009 SCMR 181), NAZIR AHMED V. THE STATE(2009 P.Cr. L.J. 299), WARIS AND 2 OTHERS V. THE STATE(2000 P. Cr. L.J. 642), SHAMMON alias SAMANDAR V. THE STATE(2007 MLD 294),MUHAMMAD MANSHA V. THE STATE (2007 YLR 515).

4.      On the other hand, learned counsel for complainant has vehemently opposed the grant of bail to applicant on the ground that the applicant has caused fire armed injuries to complainant on the instigation of his mother Shehnaz alias Rabia, in presence of two neighbor women to compel the complainant to vacate the house. He has further submitted that after sustaining injuries the complainant immediately went for medical treatment; and thereafter, she lodged the F.I.R. after 72 hours being able to go to police station. He has also submitted that the applicant along with co-accused fled away after committing alleged offence and later on he was arrested on 24.08.2016 from Liaquat Medical Hospital where he was hospitalized with fake name of Bilal Nasir after sustaining fire armed injuries in a murderous assault by the hands of his opponent gang for that an F.I.R. bearing Crime No. 225 of 2016 was registered at P.S. Soldier Bazar, Karachi-East. He added that after lodging of instant F.I.R. the applicant set the house of PW Mst. Quart-ul-Ainon fire for that she also recorded an F.I.R. bearing Crime No. 386/2016 at P.S. Soldier Bazar, Karachi-East. So also, on the instigation of present applicant, the other PW, namely, Mst. Malka was also issued criminal intimidation, hence  there is great apprehension that after releasing on bail, the applicant, who is notorious person of gang war and hardened criminal, shall harass the complainant and her witnesses. In support of his contentions, learned counsel for complainant has relied upon the cases of Muhammad Waqas v. The State  (2002 SCMR 1370) and Muhammad Rafique v. The State (2008 SCMR 678).

5.      Learned A.P.G. while adopting the arguments of the learned counsel for the complainant has also opposed the grant of bail to applicant. He has contended that the applicant is involved in number of criminal cases and being a member of gang war, there is every likelihood that in case he is released on bail, he will cause further harm to the complainant and her witnesses.

6.      Heard the learned counsel for the applicant and complainant as well as learned A.P.G. and perused the material available on record.

7.      It appears that the applicant/ accused has been attributed direct role of firing at the complainant as a result of which she sustained injuries on lower part of her body. Mere fact that there was no injury on the vital part of the body, would not, as such, bring the case of the applicant out of the purview of prohibitory clause of section 497(1) Cr. P.C. to claim the bail as of rule. As per the F.I.R. after causing injuries to complainant, the accused fled away from the occurrence and the complainant was taken to Civil Hospital by her neighbour women, namely, Quart-ul-Ain and Malka in an ambulance for treatment from where her relatives took her to Aga Khan Hospital and after obtaining treatment she came at police station and lodged the F.I.R., hence the delay in lodging F.I.R. is due to the fact that the complainant being injured was not able to go to police station directly for recording her F.I.R. It further appears that after alleged offence the applicant disappeared from the seen for a long time and when after sustaining fire armed injuries, allegedly from the hands of his rival gang, he was hospitalized for treatment in Liaquat Medical Hospital by the fake name of Bilal Nasir, from where he was arrested in the instant case. It is matter of record that the house of PW Quart-ul-Ain has been set on fire for that she has recorded her F.I.R, besides, she has also recorded her statement under section 164 Cr. P.C., wherein she has categorically implicated the applicant along with others in her case.

8.      So far the contention of learned counsel for the applicant that the alleged offence as per Medico-legal report falls under section 337-F (iii) P.P.C. is concerned, it may be observed that the alleged offence is non-bailable and in non-bailable offences grant of bail is not the right of an accused but a concession and in the peculiar circumstances of the case where not only the life of complainant but also the lives of the women PWsallegedly appear to be in danger by the hand of applicant and his accomplices, the applicant is not entitled to concession of bail.

9.      For the foregoing facts and reasons, the instant Criminal Bail Application is dismissed. However, the learned trial Court is directed to proceed with the matter expeditiously without being influence of observation made herein above, which is tentative in nature.

                                                                                      JUDGE

hanif