ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No. 573 of 2016

 

Applicant:                             Abdul Hameed s/o. Jumon Mondo,  

                                                Through Mr. Riaz Ahmed Bhatti, Advocate.

 

Respondent:                          The State, through Mr. Zahoor Shah, APG.  

 

Complainant:                        Rehmatullah s/o. Rabo Mondo,  

                                                Through M/s. Muhammad Ashraf Samo, Advocates

--------------

           

Criminal Bail Application No. 587 of 2016

 

Applicant:                             Murad Ali s/o. Rajab Mondo,  

                                                Through Mr. Karamullah, Advocate.

 

Respondent:                          The State, through Mr. Zahoor Shah, APG.  

 

Complainant:                        Rehmatullah s/o. Rabo Mondo,  

                                                Through M/s. Muhammad Ashraf Samo, Advocates

 

Date of hearing:                    22.02.2017

Date of order:                        22.02.2017

--------------

 

O R D E R

 

ZAFAR AHMED RAJPUT, J:-     By this common order, I intend to dispose of both above listed bail applications, as the same have arisen out of F.I.R. No. 73/2016 registered at PS Thatta under Section 324, 504, 147, 148, 149, 506, 337-A(i), 337-F(ii)/114 P.P.C.   

 

2.         Through criminal bail application No. 573/2016, the applicant/accused Abdul Hameed s/o. Jumon Mondo has sought pre-arrest bail in aforementioned crime. His earlier application for grant of pre-arrest bail bearing No. 274 of 2016 was dismissed by the learned 1st Additional Sessions Judge, Thatta, vide order dated 23.04.2016. He was granted ad-interim pre-arrest bail by this Court vide order dated 28.04.2016, now he seeks confirmation of his bail. While, through criminal bail application No. 587 of 2016, the applicant/accused Murad Ali s/o. Rajab Mondo seeks post-arrest bail in aforementioned crime. His earlier application for grant of post-arrest bail bearing No. 253 of 2016 was dismissed by the learned 1st Additional Sessions Judge, Thatta, vide order dated 23.04.2016.

 

3.         Briefly stated, the facts of the case are that on 02.04.2016 at 1800 hours complainant Rehmatullah s/o. Rabo Mondo lodged the aforesaid F.I.R. alleging therein that on 18.02.2016 at about 2145 hours in front of house of his uncle, namely, Loung Mondo, the present applicants/accused duly armed with repeaters and co-accused, namely, Aqil, Ayaz and Soomar duly armed with lathi, pistol and hatchet, respectively, abused and threatened his uncle Loung and on the instigation of accused Soomar, accused Ayaz fired at Akbar s/o. Loung, however, the same was not hit to him, while accused Murad Ali fired with his repeater  on Loung which hit him at his right hand and accused Abdul Hameed fired upon Loung, which hit him at his head, who fell down and started bleeding. Accused Aqil caused lathi blow on face and eyebrow of said Loung.

 

4.         Mr. Riaz Ahmed Bhatti, the learned counsel for the applicant/accused Abdul Hameed Mondo has submitted that the accused is innocent and has been falsely implicated in this case by the complainant party on account of previous enmity between them due to a dispute over freewill marriage of Mst. Shahida daughter of Ahmed Mondo with one Wajid Hussain; that the complainant party had caused pellet injuries to applicant/accused Abdul Hameed and co-accused Soomar, who have lost their eye sight to some extent and such F.I.R. was lodged against complainant party bearing Crime No. 221 of 2015 at P.S. Thatta; that there is delay of about 42 days in lodging the F.I.R. without furnishing any plausible explanation by the complainant, which makes the entire prosecution case doubtful, even otherwise consultation and deliberation before lodging of F.I.R. cannot be ruled out; that previously the complainant party has also lodged same type of F.I.R. against fellows of accused party bearing Crime No. 287 of 2014 at P.S. Thatta under Section 147, 148, 149, 506(2), 337-A(i), 37-F(i), 376, 365-B P.P.C. in which accused Abdul Ghafoor, Ghulam Ahmed, Wazeer, Abdul Sattar, Rafiq and Babu were granted bail by this Court, vide order dated 22.05.2015 passed in criminal bail application No. 291 of 2015; that as per final Medico-Legal Report, the injuries sustained by the injured Loung are punishable under Section 337-A(i) and 337-F(iii) P.P.C. for imprisonment maximum up to three years; therefore, the same does not come within the prohibitory clause of section 497 Cr.P.C.; that the provisions of section 324 P.P.C. do not attract to the present case; that co-accused Aqil, Soomar and Ayaz have already been granted bail by the learned 1st Additional Sessions Judge, Thatta; as such, on the principle of rule of consistency also the present accused is also entitled for the same concession.

 

5.         Mr. Karamullah, the learned counsel for the applicant/accused Murad Ali Mondo has adopted the arguments of learned counsel for accused Hameed. He has further contended that no injury allegedly sustained by the injured Loung is on vital part of his body; as such, his case comes within the purview of further enquiry.

 

6.         On the other hand, learned counsel for the complainant has vehemently opposed these applications on the ground that accused persons with intention to commit murder made straight fires on the uncle of the complainant, which hit him on his head and arm; as such, they are not entitled for the concession of bail. 

 

7.         The learned APG for the State while adopting the arguments of learned counsel for the complainant has also opposed this application.    

 

8.         I have considered the arguments advanced by the learned counsel for the applicants/accused, learned counsel for the complainant and learned APG as well as perused the material available on record.

 

9.         It appears that the alleged incident took place on 18.02.2016 while the F.I.R. was lodged on 02.04.2016, with delay of 42 days, for which no plausible explanation has been furnished by the complainant. Accused Murad Ali is in custody since 04.04.2016 and the trial of the accused has yet not been concluded by the trial Court. Enmity between the parties and lodging of counter F.I.Rs. are also admitted facts. Injuries allegedly sustained by the injured have been declared by the M.L.O. as Shajjah-i-Khafifah and Ghayr-Jaifah Mutalahimah, which is punishable under Section 337-A(i) and 337-F(iii), P.P.C. for imprisonment up to three years as ta’zir. Had it been intention of applicants to kill the complainant then there would have been a repetition of fire, which was not done; thus, it is yet to be seen if the applicants had any intention to kill the injured PW, as such, application of section 324 P.P.C. could only be determined at trial; hence, the case of the applicants squarely falls within the ambit of further enquiry as envisaged under sub-section (2) of Section 497 Cr. P.C.

 

10.       Besides, it may be observed that the accused Abdul Hameed was granted interim pre-arrest bail by this Court on 28.04.2016 and, admittedly, he has not misused the concession of interim pre-arrest bail and he is regularly attending the trial Court. Under the circumstances, the interim pre-arrest bail granted to applicant/accused Abdul Hameed is confirmed on the same terms and conditions. While applicant/accused Murad Ali s/o. Rajab is admitted to post-arrest bail subject to his furnishing solvent surety in the sum of Rs. 50,000/- (Rupees Fifty Thousand only) and P.R. bond in the like amount to the satisfaction of the trial Court.

 

11.       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. In case applicants in any manner try to misuse the concession of bail, it would be open for the trial Court to cancel their bail after issuing them the requisite notice.   

JUDGE

Athar Zai