ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr.Bail.Appl.No.S-  650  of 2010

DATE                                     ORDER WITH SIGNATURE OF JUDGE

25.11.2010

Mr. Nisar Ahmed Unar, Advocate for applicant.

Syed Meeral Shah, D.P.G for the State.

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This order will dispose of Criminal Bail Application No.S-650-2010 filed by the applicant Fayaz alias Pharoo who is booked in Crime No.138/2010 of Police Station Shahdadpur for offence U/s 393, 394, 398 and 34 PPC.

Applicant approached the trial Court for bail but could not succeed as his bail plea was turned down by the trial Court vide order dated 17.8.2010.

The allegation against the applicant is that on 16.5.2010 at about 1-00 P.M he alongwith co-accused tried to stop the complainant Asghar Ali on gun point who was returning from his agricultural land on motorcycle near railway crossing at Behrani road but the complainant did not stop motorcycle on which they made straight fires upon complainant, who received a pellet injury at his back and thigh of right leg, however, he succeeded to drove away his motorcycle. Subsequently, he came to know that accused Mashooq and Fayaz alias Pharoo are involved in the above offence.

It is inter alia contended that applicant is innocent and has nothing to do with the alleged offence; FIR was lodged with delay of 4/5 days without any plausible explanation; feature or Hulia of the applicant is not mentioned in the FIR; complainant has not disclosed the source of information with regard to the identity of applicant; no incriminating article has been recovered from the applicant; in challan, Section with regard to the injuries allegedly received by the complainant is not applied.

Conversely, learned D.P.G for the State opposed the application but could not controvert the contentions raised by learned counsel for the applicant.

Heard learned counsel for the parties and perused the record.

Admittedly, the FIR was lodged on 20.5.2010 whereas the alleged incident had taken placed on 16.5.2010 and no explanation with regard to the delay in FIR has been furnished. Admittedly, features or description of the applicant are not given in the FIR though the alleged incident had taken place in the broad day light. Complainant also failed to disclose the source with regard to the involvement of the applicant in the commission of the offence. No recovery of any incriminating article has been made from the present applicant. However, record shows that a pistol was recovered from co-accused Mashooq who has been granted bail by the trial Court on the ground of tender age. Per medical certificate, the injuries received by complainant fall U/s 337-F(iii) PPC which is punishable for 03 years . During investigation, prosecution could not collect any material to show that applicant has any nexus with the alleged offence. In FIR Sections 393, 394 and 398 PPC have been applied. Section 393 PPC pertains to attempt to commit robbery which is punishable with R.I for a term which shall be extended upto 07 years whereas Section 394 PPC provides the punishment for voluntarily causing hurt and committing robbery which is punishable for life, or with R.I for a term which shall not be less then 04 years and not more than 10 years whereas Section 398 PPC provides the punishment for attempt to commit robbery or dacoity when armed with deadly weapons for which accused shall be punished not less then 07 years.

Keeping in view the punishments provided in above Sections and the dictum laid down in the case of Shahmoro Vs. The State, reported in 2007 U.C 875 where it is held that while deciding the bail application lesser sentence out of alternate sentence may be taken into consideration for determining whether the case falls under prohibitory clause of Section 497 (1) Cr.P.C, I am of the considered view that case of applicant requires further enquiry as there are no reasonable grounds to believe that he has committed an offence punishable with death, imprisonment for life or 10 years as the prosecution could not collect any material against the applicant to show that he has committed an offence which falls within the prohibitory clause of Section 497 (1) Cr.P.C.

For the foregoing reasons, the applicant was granted bail by short order dated 25.11.2010 subject to furnishing solvent surety in the sum of Rs.100,000/- (One lac) and P.R Bond in the like amount to the satisfaction of the trial Court.

  Above are the reasons of said short order.

JUDGE

Tufail