THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No.1410 of 2019

Applicants                 :           (1) Waheed Kakar, (2) Aurangzaib, (3) Abrar Khan, (4) Muhammad Ilyas, (5) Hamza Khan, (6) Abdul Malik and (7) Abu Zar through       Mr. Muhammad Naseeruddin, Advocate

Complainant            :            Ali Raza through Khwaja Muhammad Azeem, Advocate

Respondent              :            The State through Mr. Abrar Ali Khichi, APG

Date of hearing         :           30.10.2019

Date of Order            :           30.10.2019

ORDER

Abdul Maalik Gaddi, J: Applicants/ accused are present on interim bail granted to them by this Court vide Order dated 03.10.2019. Today this bail application is fixed for confirmation or otherwise.

2. Facts of the case as disclosed in FIR are that complainant Ali Raza son of Muhammad Ashraf lodged the FIR on 13.9.2019 at PS Saeedabad through his statement under Section 154 CrPC, in which it is mentioned that he is residing at H. No.32, Gali No.34, Sector 3, Naval Colony, Saeedabad and he has shop No.1, Gali No.4, Sector 3, Naval Colony, with the name and style of Mashallah Carpet. On 12.09.2019 at about 7:00 p.m. his brothers Muhammad Irfan and Asim Raza were available at the shop meantime Waheed Kakar son of Ghaffar, Ibrar and 10/15 other persons were came with dandas and started abuses to him in which result all 03 brothers have received injuries on their heads and other parts of the bodies, the incident was seen by the eye witnesses Bashir Ahmed son of Meharuddin and who separated the complainant and his brothers from the accused persons. The complainant and his brothers were medically examined by the MLO and issued Final Medical Certificates to them.

3. It is contended by learned counsel for applicants that the applicants/ accused are innocent and have falsely been implicated in this case by the complainant with collusion of police with malafide intention and ulterior motives and they have not committed the alleged offence; that according to the FIR the alleged incident was occurred on 12.9.2019 at 1900 hours and report was lodged by the complainant on 13.9.2019 with one day delay which is not explained by the complainant; that all sections applied in the FIR either bailable or their punishment does not fall under the prohibitory clause of Section 497 CrPC; that applicants are not previously convicted or remained indulged in such type of activities in past; therefore, counsel for applicants prayed for confirmation of bail in favour of the applicants/ accused.

4. Learned APG assisted by learned counsel for complainant opposed this bail application on the ground that applicants/ accused made attack upon the complainant and his brothers in which the complainant has received injuries which declared by the MLO as Shajjah-i-Khafifa, the co-injured Muhammad Irfan has received injuries which declared as Shajjah-i-Madiha and Shajjah-i-Khafifa, the co-injured Ali Raza has received injuries which declared by Shajjah-i-Madiha. Case is fresh one and if the accused are granted bail, certainly they will repeat the offence, therefore, they are not entitled for bail.

5. I have heard the learned counsel for parties at a considerable length and have gone through the case papers so made available before me.

6. It is an admitted fact that the case has been challaned and the present applicants/ accused are no more required for investigation. It appears from the record that the alleged incident took place on 12.9.2019 at 07:00 p.m., whereas the same was registered on 13.9.2019 after the delay of one day, for which no satisfactory explanation has been furnished. It also appears from the record that applicants No.1 to 3 are nominated in FIR, whereas applicants No.4 to 7 are not nominated in FIR, despite of this fact, they have been implicated in this case. Therefore, this aspect of the case is also required to be thoroughly scrutinized at the time of trial, whether the incident has taken place in a fashion as stated in FIR or otherwise. During the course of arguments, I have asked the question from the learned counsel for complainant to explain the delay in FIR. He has no satisfactory answer with him. The allegation against the applicants/ accused is that at the time of incident, they were armed with ‘dandas’ and caused ‘danda’ blows to the prosecution witnesses. This fact has been denied by the counsel for applicants. Since there are words against words with regard to causing injuries to the complainant and prosecution witnesses, therefore, this fact also requires evidence at the time of trial. It is noted that all sections applied in this case either bailable or their punishment do not fall within the prohibitory clause of Section 497 CrPC. Perusal of report of Medico Legal Officer on record does not show that the injuries to complainant or PWs are dangerous to their lives. No exceptional circumstance appears in this case to withhold the bail of applicants. Nothing on record that the present applicants/ accused are previously convicted in any other case or they remained indulged in such type of activities in past.  

7. In view of the above, applicants/ accused have made out a case for confirmation of bail. I, accordingly, confirm interim bail order already extended in favour of applicants/ accused on same terms and conditions with direction to applicants to appear before trial Court to face trial.

8. Needless to mention here that the observation, if any, made in this order is tentative in nature and shall not effect the merits of the case. It is made clear that in case if the applicants/ accused misuse the bail before the trial Court, then trial Court would be competent to cancel the bail of the applicants after due notice and hearing the applicants.

9. In view of the above, this bail application is allowed in above terms.

       JUDGE

asim/pa