IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-27 of 2022

Applicant: Folad Talpur, through

Mr. Zamir Hussain Talpur, Advocate

Complainant: Najma Khatoon, through

Mr. Muhammad Faheem Shahbaz, Advocate

State: Through Mr. Shafi Muhammad Mahar

Deputy Prosecutor General.

Date of hearing: 14.03-2022

Date of Decision: 14.03-2022

O R D E R

ZULFIQAR ALI SANGI, J.- Through instant bail application, Applicant/accused Folad son of Mumtaz Hussain Talpur, is seeking his post-arrest bail in FIR No.47/2021, registered at Police Station Bozdar Wada, District Khairpur, under sections 324, 34 PPC. His earlier post-arrest bail plea was declined by the learned Additional Sessions Judge-II, Khairpur, vide order dated 04.01.2022.

2. Briefly the facts of the prosecution case are that complainant Najma Khatoon lodged FIR on 14.11.2021 at 1400 hours stating therein that some days prior to this incident her brother Ghulam Murtaza had forbidden accused Folad Ali from giving the plot situated in front of his house to Raja Khaskheli as it is the walking area of children and there is house of his sister, on which accused got annoyed and was issuing threats of teaching lesson. On 13.11.2021 complainant was present the house of her sister Shabnam along with her brothers Ghulam Murtaza and Mushtaque and they after taking meal were sleeping there, at about 1.30 am they woke up on cries and saw Folad Ali, Babar Hussain with pistols, Nadir, Raja, they all were beating her brother Ghulam Murtaza and Mushtaq. Complainant raised cries and meanwhile accused Folad made direct fire upon Ghulam Murtaza which hit him on his left thigh. On their cries villagers came over there and on seeing them the accused persons fled away. Hence complainant lodged such FIR.

3. Learned counsel for the applicant has contended that the applicant is innocent and has been falsely involved in this case. He next contended that in fact on that night the complainant party had entered into the house of applicant party for kidnapping, robbery and dacoity during which their own fire hit to Ghulam Murtaza and in this regard mother of applicant had filed direct complaint against the complainant party which is pending adjudication. He also contended that co-accused Babar Hussain has been granted pre-arrest bail by the trial court and case of present applicant is identical to that of co-accused. He further contended that the PWs are close relatives of the complainant and no independent person has been cited as witness or mashir. He also contended that the accused is behind the bars for last four months, case has been challaned and applicant is no more required for investigation, therefore, in these circumstances the case of applicant requires further enquiry and he is entitled to be enlarged on bail. In support of his contentions learned counsel for the applicant has relied upon 2018 YLR Note 86, 2018 YLR Note 73, 2018 YLR Note 205, 2017 YLR Note 188, 2017 P.Cr.L.J 1658, 2004 YLR 431, 2017 MLD 1535, 2012 YLR 1557, , and 2014 P.Cr.L.J 261.

4. Learned counsel for the complainant has opposed the grant of bail and has contended that the PWs have fully supported the version of complainant in their 161 Cr.P.C statements and the applicant has been assigned specific role of firing upon injured Ghulam Murtaza and offence falls within prohibitory clause of section 497 Cr.P.C as such the applicant is not entitled for concession of bail.

5. Learned D.P.G. adopted the arguments advanced by the learned counsel for the complainant and has further contended that the FIR was lodged promptly and ocular version is supported with medical evidence, therefore applicant is not entitled for grant of bail. He in support of his contention placed his reliance on the cases reported as 2021 SCMR 1157, 2021 SCMR 1983 and 2020 SCMR 1486.

6. I have considered the arguments advanced by learned counsel for the respective parties and have gone through the material available on record with their able assistance.

7.               Admittedly the name of applicant transpires in the FIR with specific role of firing upon injured Ghulam Murtaza and the same FIR has been registered promptly. The witnesses have fully supported the version of complainant in their statements under section 161 Cr.P.C Record reveals that the I.O has recovered empty of pistol from the place of incident as well as collected blood stained cloth of injured Ghulam Murtaza and as per report of Sindh Forensic DNA and Serology Laboratory Karachi the cloth of injured was found stained with human blood. During investigation crime weapon was also recovered from the applicant. The offence u/s 324 PPC falls within the ambit of prohibitory clause of section 497 Cr.P.C, hence the same is hit by statutory prohibition. It is observed that murderous assault as defined in Section 324 PPC drew no anatomical distinction between vital or non-vital parts of body. Once the triggered was pressed and the victim was effectively targeted “intention of knowledge” as contemplated by Section 324, PPC was manifested; the course of bullet is not controlled or steered by assailant’s choice nor can he claim any premium for a poor marksmanship. No malafide has been pointed out by the applicant on the part of complainant or the investigating officer for false implication.

8. It is well settled principal of law that the court has to make tentative assessment while deciding the bail application and deeper appreciation of evidence is not permissible at bail stage.  The facts and circumstances of the case law referred by learned counsel for the applicant is distinguishable to the present case and are not applicable in this case while the case law referred by the learned DPG are fully in consonance with the facts and circumstances of the case in hand.

9.                In these circumstances, I am of the considered view that there is sufficient material available with the prosecution which connects the applicant with the offence and the applicant has failed to make out his case for post-arrest bail. Accordingly, instant bail application is dismissed.

10.                The observations made hereinabove are tentative in nature only for the purpose of deciding the instant bail application, which shall not, in any manner, influence the learned Trial Court at the time of final decision of the subject case.

JUDGE

Suleman Khan/PA