ORDER SHEET
IN THE HIGH COURT OF SINDH,CIRCUIT COURT, HYDERABAD.
Criminal Bail Application No.S-577 of 2016
Criminal Bail Application No.S-648 of 2016
Date of hearing: 06.01.2017.
Date of decision: 09.01.2017.
Applicants: Abdul Razzaque and Ali Akbar in Pre-arrest Criminal B.A No.577 / 2016 and in Post arrest Criminal B.A No.S-648 of 2016 applicants (1) Ali Asghar, (2) Mumtaz Ali and (3) Muhammad Ismail through Mr. Ghulamullah Chang Advocate.
Respondent: The State through Mr. ShahzadoSaleemNahiyoon, A.P.G. Sindh.
Complainant: Muhammad Ishaque through Mr. Rao Faisal Ali advocate.
O R D E R
KHADIM HUSSAIN TUNIO, J: - By this common order, I intend to dispose of above noted post and pre-arrest bail applications filed on behalf of above named applicants in crime No.12 of 2016 PS SoofiFaqeer under section 324, 147, 148, 149, 504, 337-A(i), (ii), (iii), F-(i) PPC as same are outcome of the one and same FIR.
2. In nutshell accusation is that applicants along with co-accused on 28.06.2016 at 0730 hours attacked upon the complainant party infront of otaque of RaisGhulam Mustafa Bhurgri, caused hatchet blows to Rab Nawaz, Saleem and Niaz Muhammad with intention to commit their qatl-i-amd due to previous dispute and abused the complainant party for which present FIR was lodged.
3. Mr. Ghulamullah Chang, learned counsel for applicants argued that there are general allegations; that no specific role is attributed to any of the applicants; that there is conflict between ocular evidence and medical evidence; that the parties are inimical with each other over Local Council Elections; that the injury punishable under section 337-A(iii) PPC is not specifically attributed to any of the applicants / accused; that applicants alleged malafide on the part of complainant / police.
4. Mr. Rao Faisal Ali, learned counsel for complainant strongly opposed the grant / confirmation of bail to the applicants; that the applicants caused grievous hurt to PWs, which carries ten years punishment and falls within the prohibitory clause of section 497 Cr.P.C.; that the applicants failed to prove malafide, ulterior motive, undue harassment on the part of complainant as well as police, which is pre-requisite conditions for grant of pre-arrest bail; that parties are disputing with each other and criminal cases are pending between them. He lastly argued that applicants / accused are not entitled to post arrest / pre-arrest bail. He has placed his reliance on case law reported in 2004 SCMR 772, 2005 SCMR 1496, 2005 YLR 336 and 2006 P Cr. L J 423.
5. However, Mr. ShahzadoSaleemNahiyon, learned A.P.G. Sindh submitted that there are general allegations against the applicants, who caused Shajjah-i-Hashimah,which is punishable for ten years.
6. Having heard learned counsel for respective parties. Perused relevant record.
7. Admittedly, there are general allegations against applicants along with four un-identified persons for causing hatchet and lathi blows to the complainant party. It is admitted position that injuries on the persons of injured namely,Rab Nawaz, Niaz Muhammad and Saleem respectively have been declared by the Medico-Legal Officer as Shajjah-i-Hashimah, Shajjah-i-Khafifah and Shujjah-e-muddiyah respectively. It is also admitted that the applicants along with 04 un-identified culprits caused hatchet blows but single injury on the person of injured Rab Nawaz has been declared as Shajjah-i-Hashimah, which carries punishment for ten years and same is not specifically attributed to any of the present applicants or un-identified culprits. It is further admitted position that according to medical certificates, said injuries were caused by hard blunt substances though complainant alleged in the FIR that the applicants / accused causedsharp side hatchet blows to said PWs at the time of commission of alleged incident. Further, the parties are inimical with each other over Local Council Elections and the complainant party has got registered FIR bearing No.11/2016 PS SoofiFaqeer under section 324, 506 (2), 337-H (ii), 341, 147, 148, 149, 504 PPC; FIR No.22 / 2014, PS SoofiFaqeer, under section 395, 342, 506 (2) 34 PPC; FIR No.02 / 2016 PS Boddar Form, under section 365-B, 114, 182, 452 PPC; FIR 30 /2006, PS Boddar Form, under section 337-A (i), 337-F (i), 337-H (ii), 427, 504, 147, 148, 149 PPC & 17(2) Offences Against Property (Enforcement of Hudood) Ordinance, 1979,against applicants / accused party. Applicants Abdul Razzak and Ali Akbar alleged malafide on the part of complainant / police.
8. In case of “Jafar and others versus the State” reported in a case of 1980 SCMR 784, the Honorable apex court has very kindly observed that:
“It could not be said as to who caused the fatal injury which left room for consideration as to the common intention of the others to kill the deceased and, therefore, it was a case of further inquiry u/S 497(2), Cr.P.C. The learned Additional Advocate General appeared to oppose the bail but after examining the material we were of the view that it was case of further enquiry. Accordingly, we converted the petition into an appeal and allowed bail to the petitioners”.
9. As far as the case law referred by the learned counsel for the complainant are concerned, there is no cavil with the principle laid down in the referred cases, the same are not applicable with the facts and circumstances of present case and are distinguishable.
10. Keeping in view of the foregoing reasons and circumstances, interim pre-arrest bail already granted to the applicants; namely, Abdul Razzak and Ali Akbar, by this Court is confirmed on same terms and condition, whereas, the applicants; namely Ali Asghar, Mumtaz Ali and Muhammad Ismail are admitted to post arrest bail on furnishing solvent surety in the sum of Rs.50,000/- (Rupees fifty thousand only) each and PR bond in the like amount, to the satisfaction of learned trial Court.
11. It is made clear that the observations made herein above are tentative in nature and would not cause prejudice to the case of either party at trial.
JUDGE