ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail Application No. S-377 of 2020

 

 

            Applicant                   :           Muhammad Paryal

                                                            Through Mr. Munawar Alam Khan,

Advocate

 

 

Complainant             :           Dildar Ali Doongh

                                                Through Mr. Gulab Khan Mashori,

Advocate

 

Respondent              :           The State

Through Mr. A. Rehman Kolachi, APG

           

Date of hearing        :           21.07.2020

            Date of Order            :           21.07.2020

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O R D E R

 

ADNAN-UL-KARIM MEMON, J:         Through this application, the applicant has sought post-arrest bail in FIR No.26/2020, registered at P.S. Mithiani, for offences punishable under Section 324, 114, 504, 34 PPC. His earlier bail plea was declined by 2nd Additional Sessions Judge, Naushahro-Feroze, vide order dated 04.07.2020.

 

2.         The precise allegation against the applicant is that he instigated  co-accused to commit murder of Gulzar brother of the complainant, resultantly they fired upon the victim Gulzar, who sustained injuries on his body and such F.I.R was registered on 3.6.2020.

 

3.         The learned counsel for the applicant has argued that the applicant  is in jail since 6-06-2020 and so far challan/final report under section 173, Cr.P.C. has not yet been submitted; that injuries suffered by the victim  were on non-vital parts of the body; that the story was not plausible; that no recovery was effected from the applicant; that the Applicant is innocent, implicated due to admitted enmity; that there is an inordinate delay of one day in lodging of F.I.R; that offence under section 324 is not attracted in the present case and other offence is punishable for five years and does not fall within prohibitory clause of section 497, Cr.P.C., According to him, the applicant was arrested on 6-06-2020, but till date challan has not been submitted as such his detention in custody is illegal. That a specific role has been attributed to the co-accused who allegedly made firing upon the victim, whereas neither the applicant was present at the time of occurrence nor overacted. It is contended that except making the allegation of instigation, there is no other allegation and not an iota of legal evidence available against the applicant to sustain the prosecution case; that there is no allegation that the applicant made any consultation or conspiracy with the principal accused and there is also no evidence on the record that the applicant made firing upon the victim or caused any injury to any one; that the Applicant has no motive to cause injury to the victim. He concluded by stating that the Applicant is entitled to the concession of bail.

 

4.   On the other hand, learned Deputy Prosecutor-General, Sindh assisted by the learned counsel for the complainant supported the impugned order of refusal of bail to the applicant by the learned trial court and admitted that challan was not put up within prescribed period before the competent Court of law.

 

5.         I am conscious of the fact that while deciding a bail application this court has to make tentative assessment of the record. In this regard, I am fortified by the decision of Honorable Supreme Court of Pakistan rendered in the case of Shahzad Ahmed vs. The State (2010 SCMR 1221).

 

6.         Tentative assessment of record reflects the following aspects of the case:

            i)          Prima facie, FIR discloses enmity between the parties;

            ii)         There is delay of one day in lodging of FIR;

            iii)        No injury caused by the applicant to the deceased;

            iv)        Prima facie, it is yet to be seen by the trial Court as to

whether Section 324 PPC is attracted in the case against the

applicant;

v)         Prima facie, mushirnama of place of incident does not disclose recovery of empties of firearm;

 

           

7.         The grounds agitated by the Deputy Prosecutor-General, Sindh assisted by the learned counsel for the complainant cannot be assessed at the bail stage without recording the evidence in the matter. The case law cited by him is distinguishable from the facts and circumstances of the present case.

 

8.         From the above facts and circumstances of the case, I am of the tentative view that the prosecution has yet to establish the culpability of the applicant so far as his role in the aforesaid crime is concerned in the trial. On the aforesaid proposition, I am  fortified by the decision rendered by the Hon’ble Supreme Court in the case of Qurban Ali vs. The State and others (2017 SCMR 279).

 

9.         In view of the above the applicant is admitted to post-arrest bail in Crime No.26/2020, of Police Station Mithiani, District Naushahro-Feroze, registered for offence u/s 324,114,504,34 PPC, subject to furnishing his solvent surety in the sum of Rs.100,000/- (rupees one  lac) and P.R bond in the like amount to the satisfaction of the learned trial court.

 

10.       The above findings are tentative in nature which shall not prejudice the case of either party during the course of trial.

                                                                                                       

                                                                                                 JUDGE