IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail application No.S- 697 of 2019

 

Date

               Order with the signature of Judge

 

                             For the hearing of the main case.

 

 

17-01-2020

Mr. GhulamMurtazaKorai, Advocate for Applicant.

Mr. Shabir Ali Bozdar, Advocate for complainant. 

Mr. Khalil Ahmed Maitlo, DPG

          -.-.-.-.-.-.-.-.-.-.

                  

O R D E R

 

Zulfiqar Ali Sangi,J:             Through the instant application, the applicant/accusedMumtaz Ali S/O Allah DiwayoMiraniseek pre-arrest bail in FIR No.42/2019, registered at Police Station Belo Mirpur, under Sections 337A-iii, 337F-i, 147, 148, 149, 337H-ii. P.P.C. Applicant/accused along with co-accused 1.Zulfiqar Ali S/O Allahdiwayo, 2.Haider Ali S/O Allahdiwayo, 3.Sadaqat Ali S/O Allahdiwayo, 4.Wajid Ali S/O Maqsood Ahmed, 5.Irfan Ali S/O Pahalwan, 6.Kamran Ali S/o Pehlwan7.Asif Ali S/O Allahdiwayo, 8.Sajjad @ Sajid Ali S/O Maqsood Ahmed approached for bail before the learned 3rd Additional Session Judge, MirpurMathelo, which was declined to extend of present applicant and the learned Court confirmed the bail of all other co-accused vide order dated 23.11.2019 after such applicant approached this court for the same relief.

 

2.      Facts of the prosecution case, in brief, are that on 13.09.2019, the daughter of complainant’s Masat deceased Makhno, namely Mst. Soomal was abducted, against whom such case of abduction was registered at police station MirpurMathelo against AmeerBuxMoosani, for which Mumtaz S/O AllahdiwayoMirani and others were annoyed and were saying that complainant has lodged a false FIR against their Hari Amir Moosani. On the same day i.e 13.09.2019, complainant along with his brother Haji and cousin RasoolBux S/O Bachal, by caste Pitafi were standing outside the house of Liaqat Ali Pitafi, at about 1240 hours, accused persons namely 1. Mumtaz Ali with an iron rod, 2.Zulfiqar Ali, 3. Haider Ali. 4. Sadaqat Ali, 5. Asif Ali all sons of Allahdiwayo 6.Wajid Ali 7. Sajjad Ali @ Rano both sons of Maqsood Ahmed, with lathis 8.Irfan Ali armed with K.K, 9. Kamran Ali with pistol both sons of Pehlwan, all by caste Mirani R/O village Wango, TalukaMirpurMathelo, came there and on coming accused Kamran Mirani said to other accused that they (Complainant party) have lodged a false FIR against their Hari, therefore, teach them a lesson today. In the meanwhile, accused Mumtaz Ali gave an iron rod blow to complainant’s brother Haji Khan on his cheek,accused Zulfiqar gave lathi to Haji Khan on his arm, who fell, remaining accused persons also maltreated to complainant party. Thereafter complainant gave the names of Almighty Allah to accused, then accused runway while making aerial firing. Then complainant brought his injured brother Haji Khan at Taluka Hospital MirpurMathelo, being alone, on 17.09.2019, complainant went to police station Belo Mirpur and received letter of treatment, injured was referred to Sukkur for better treatment, after leaving the injured at Sukkur Hospital complainant returned and filed petition and after obtaining directions from court, complainant came at police station and lodged FIR.

 

3.       Learned counsel for applicant contended that applicant is innocent and involved by complainant with melafide intention; that there is delay of two months in registration of FIR which has not been explained by the complainant; that offence does not fall within prohibitory clause of S. 497 (1) Cr.P.C; that all the accused involved by the complainant belongs to the same family; that 08 co-accused have already been granted bail by the learned 3rd Additional Session Judge MirpurMathelo; that thereis contradiction in ocular and medical evidence; that FIR No. 28 of 2019 was registered by the police against the complainant party; that applicant party also wants to register counter FIR against the complainant party but police had not registered the same, therefore applicant party filed application u/s 22-A & B Cr.P.C which is pending before the learned Justice of Peace, he further contended that medical certificate issued by Doctor was challenged by applicant party and medical board is constituted who issued notices to the injured. Lastly, he prays for confirmation of bail. He relied upon 2010 Pak.Cr.L. 379.

 

4.       Learned DPG contended that applicant is nominated in FIR with specific role for causing injury to injured Haji on his cheek which is vital part of body; that ocular account is supported by medical evidence; that no enmity or ill will has been suggested against complainant party; that no melafide on the part of complainant has been pointed out. Lastly, he prays that the bail application of the applicant may be dismissed.

 

5.       Learned counsel for complainant while adopting the arguments of learned DPG contended that the applicant has committed a heinous offence; that the intention of applicant for causing murder is very much clear from the injury caused by him on vital part of body; that the basic ingredients for pre-arrest bail has not been pointed out by the applicant; that while deciding the bail application tentative assessment of material is required and the grounds agitated by counsel of applicant are of deeper appreciation of evidence which is not permissible under the law. Lastly, he prays that the bail application of applicant may be dismissed, he relied upon 2009 SCMR 75, 2016 YLR Note 99, 2009 Pak.Cr.L.J 405, 2018 M.L.D 90, 2018 YLR 104, 2018 Y.L.R 167, 2019 SCMR 1129 and 2010 Pak.Cr.L.J 1117.   

 

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

 

7.           The record reflects that the incident took place on 13.09.2019 and FIR was registered on 13.11.2019, in the FIR complainant tried to explain the delay by showing that he was busy in the treatment of his injured brother and later on he filed an application before 3rd Additional Session MirpurMathelo and after obtaining order he lodged the FIR. The provisional medical certificate issued by the doctor available on page 31 shows that the injured was brought by one Liaqat Ali in Hospital on 13.09.2019 and on 17.09.2019 police issued letter which shows that police received information on 17.09.2019 but FIR was not registered, the presence of complainant with injured is also doubtful. Tentatively the explanation in recording delay in the FIR is not satisfactory.

 

8.           Learned counsel for applicant place on record a memo of Cr.Misc. Application No. 24 of 2020 filed by the present applicant against the complainant party along with a letter issued for medical treatment and certificate dated 13.09.2019 which shows that applicant Mumtaz Ali and Sadaqat Ali also received the injures but these facts have been concealed by the complainant in the present case which shows that the complainant not registered the FIR with clean hands and hidden the truth, all these facts make out a case of further inquiry.

 

9.           The enmity in between the parties is admitted the report of DSP Complaint Redressal Centre Ghotki available at Page No. 19 which was submitted on the application of complainant before 3rd Additional Session Judge/Justice of Peace MirpurMathelo clarify the position and the findings of the inquiry are reproduced as under:-

 

          “After hearing the concerned parties, recording their statements & also going through the relevant record, it has come to surface that petitioner’s niece Mst. SomalPitafi was abducted by the accused AmeerBux& others on 13.09.2019, such case FIR No. 123 of 2019 u/s 365-B, 147, 148, 149 PPC was registered at PS Belo Mirpur on the complaint of Nadar Ali Pitafi against AmeerBux S/O Ghulam Mohammad Mosani& others, hence, the dispute developed between Mossani Community &Pitafi Community. In order to maintain the law & order situation, the police has detailed at the houses of Mossani community near village Wango. The fact is that on 13.09.2019 at about 11/1200 hours, petitioner along with so many persons of Pitafi community who duly armed with lathies, weapon assaulted upon the house accused AmeerBuxMosani& others, due to timely intervention of police personnel of Picket AmeerBux, Mossani, assaulted party/petitioner returned back to the houses of proposed accused Mumtaz Ali S/O Allah DiwayoMirani& others, situated in village Wango& said them that the woman of Mossani Community are available in their houses, on their denial, the quarrelsome was taken place, as a result petitioner’s brother namely Haji Khan S/O RamzanPitafi become injured referred to DHQ Hospital MirpurMathelo& from where referred to GMC Sukkur for better treatment, Petitioner obtained provisional certificate vide No.602 dated 17.09.2019, in respect of his injured brother Haji Khan & has filed this petition”

 

10.         The final medical certificate issued by the doctor available at page No. 33 shows that its date is tempered. The approach of the injured in different Hospitals viz. DHQ MirpurMathelo, GMC Sukkur, CMC Larkanais to be seen after the recording evidence by the trial court and at the stage of bail the deeper appreciation of evidence is not permissible under the law, However, the different medical certificates produced by the parties creating some doubts. Learned counsel also places on record the office order dated: 20-12-2019 issue by the Director-General Health Hyderabad regarding the constitution of Special Medical Board on the application of the present applicant, therefore, the nature of the injury is yet to be determined by the Special Medical Board.

 

11.         All the sections applied in FIR are bailable except S. 337A-iii PPC which provides the punishment up to 10 years. The parties are admittedly on inimical terms with each other. All the family members have been involved in this case and prosecution story appears to be managed one by the complainant. The applicant has challenged the medical certificate before the Special Medical Board. Nothing has been recovered from the place of the incident during the investigation, these all things shows that the complainant lodged the FIR with malafide intention.

 

12.         It is a well-settled principle of law that while deciding the bail plea, the court has to consider the minimum aspect of the sentence provided for the alleged offence in the schedule and it is for the trial court to threshold the truth by recording evidence of prosecution witnesses. In the case, in hand, the investigation has been completed and challan has been submitted before the court having jurisdiction. No purpose would be served if the applicant is refused anticipatory bail on technical grounds.

 

13.         Considering the above facts and circumstances of the case, interim pre-arrest bail already granted to the applicant by this court vide order dated 06.12.2019 is confirmed on the same terms and conditions. However, all the discussion made hereinabove is tentative nature and will not prejudice the case of either party as well as the influence of the mind of the trial court in deciding the case on merits.

 

                                                                                               

 

 

                                                                                                            JUDGE