ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No. 1271 of 2016

 

Applicant:                             Muhammad Imran s/o. Noor Muhammad,

                                                through Mr. Farooq Hayat, Advocate.

 

Respondent:                          The State, through Mr. Abdullah Rajput, APG,

                                                alongwith SIP Shakeel Ahmed Shaikh, I.O.

 

Complainant:                        Dr. Syed Sajid s/o. Syed Hamid Ali,

                                                through Mr. Farhad Khan, Advocate.

 

Date of hearing:                    27.01.2017

Date of order:                        27.01.2017

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O R D E R.

 

Zafar Ahmed Rajput, J:-     Having rejected his earlier bail before arrest application bearing No. 448 of 2016 by the learned 1st Additional Sessions Judge, Karachi Central,  vide order dated 30.07.2016, the applicant/accused Muhammad Imran s/o. Noor Muhammad, through instant Criminal Bail Application has sought pre-arrest bail  in Crime No. 126 of 2016, registered at P.S. Rizvia Society, Karachi Central under Section 147, 148, 149, 380, 506-B, 337-A(i), 337-A(ii) and 337-A(vii) P.P.C.  He was admitted to interim pre-arrest bail vide order dated 02.09.2016, now he seeks confirmation of his bail.

 

2.         It is alleged that on 14.03.2016 at 1100 hours the applicant/accused committed assault upon the complainant, namely, Dr. Syed Sajid s/o. Syed Hamid Ali alongwith co-accused persons and issued criminal intimidation for causing death. 

 

3.         The learned counsel for the applicant/accused has submitted that the applicant is innocent and has falsely been implicated in this case by the complainant due to malice and ulterior motive; that the version given by the complainant in his F.I.R. is quite different than what has been narrated by him in his report, recorded vide Roznamcha Entry No. 11 dated 14.03.2016; that the medico-legal certificate bearing No. 1129/16 dated 14.03.2016 issued by Dr. Raza Rajpar, MLO, Civil Hospital, Karachi was challenged by the applicant before the Special Medical Board, constituted by the Secretary Health, Government of Sindh vide letter dated 07.04.2016 and the same has been held by the Board as incorrect; that it has been alleged that at the time of incident the applicant was in possession of fire arm but admittedly the same was not used by him; hence application of section 506-B P.P.C. in this case requires further probe, even otherwise the alleged offence does not fall within the prohibitory clause of Section 497 Cr.P.C.; that after investigation the I.O. let off five (05) co-accused, who were also named by the complainant in the F.I.R. with the same charge and the I.O. has submitted the report under Section 173 Cr.P.C. for the offence under Section 506-B, 337-A(i) P.P.C.; hence the malice and ulterior motive of the complainant for implicating the applicant in the case is visible even from the material available with prosecution which makes  the applicant entitled for the confirmation of bail. 

 

4.         On the other hand, learned counsel for the complainant has vehemently opposed this application on the ground that the applicant is nominated in the F.I.R. by name for committing alleged offence; that the grounds for the grant of pre-arrest bail are different than the grounds for post arrest bail; that the applicant was required to challenge the medico-legal report immediately, which was not done by him; therefore, the applicant is not entitled for the concession of pre-arrest bail. In support of his contentions, the learned counsel for the complainant has relied upon the case of Qalandar Bux vs. The State (2013 YLR 2067), Naseer Ahmed and another vs. State [PLJ 2009 Cr. C (Lahore) 1292] and Meer Muhammad and another  vs. Deputy Commissioner/District Magistrate, D.G. Khan and 9 others (1999 P.Cr.L.J. 2055).

 

5.         Learned APG while adopting the arguments of learned counsel for the complainant has also opposed the confirmation of ad-interim bail granted to applicant.

 

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

 

7.         It is an admitted position that the applicant is nominated in the F.I.R. alongwith five (05) other co-accused persons with similar role; however, for want of evidence rest all the five co-accused persons have been let off by the I.O. by mentioning their names in 2nd column of the challan with blue ink. The F.I.R. has been lodged under aforementioned sections but subsequently after the investigation of the case challan has been submitted by the police only under Section 506-B/337-A(i) P.P.C. Although in the medico-legal  report dated 14.03.2016 the MLO, Civil Hospital, Karachi declared the injury No.1 as Shajjah-e-Mudihah falling under Section 337-A(ii) and rest of the three injuries as (ii) Diffuse swelling of nose, tenderness positive, (iii) Diffuse swelling of left shoulder and (iii) Single abrasion over right forearm; however, the applicant has challenged such medico-legal report by moving an application dated 06.04.2016 to the Secretary Health, who vide letter dated 07.04.2016 constituted a Special Medical Board and as per report of the Board the medico-legal certificate issued by the MLO Civil Hospital, Karachi was declared incorrect by holding injury No.1 as Shajjah-e-Khafifah falling under section 337-A(i) P.P.C. which is bailable under the schedule of offence; hence malice and ulterior motive for implicating the applicant in the aforementioned crime by the complainant cannot be ruled out. The case-law cited by the learned counsel for the complainant being on different footings are not helpful to complainant in the present case; Hence, the interim pre-arrest bail granted to applicant vide order dated 02.09.2016 is confirmed on the same terms and conditions.

 

JUDGE

Athar Zai