ORDER SHEET
IN THE HIGH COURT
OF SINDH BENCH AT SUKKUR
Cr. Bail
Application No.S-356 of 2022
Applicant: Azhar, through
Mr.
Nazir Ahmed Junejo, Advocate
Complainant: Muhammad Haneef, through
Mr.Ghulam Murtaza Buriro, Advocate
State: Through Syed
Sardar Ali Shah,
Additional
Prosecutor General
Date of
hearing: 19.09.2022
Dated of
order: 19.09.2022
O R D E R
Shamsuddin Abbasi, J: Applicant / accused
Azhar, seeks pre-arrest
bail in Crime No.105/2021, registered at Police Station Pir-Jo-Goth, for offence punishable under
sections 324, 114, 337-H(2), 147, 149, 337-F(v), 337-A(i) PPC, after rejection
of his bail by learned trial court vide order dated 02.11.2021.
2. Brief facts of the case are that on 07.08.2021
at 6.00 p.m applicant along with his companions duly armed
with KK and pistols intercepted the complainant party at Abra
Sim Nali on link road
leading from Kanhar Moar to
Khairpur and on the instigation of accused Sikander,
present applicant/accused Azhar made direct fire shot
from his pistol on complainant’s brother Mushtaque
Ahmed which hit him on his right leg near
knee; accused Sheerza Ahmed caused pistol butt blow
to Mushtaque Ahmed on his nose, Accused Shahzaib caused pistol butt blow to him on his head,
accused Babu caused butt blow of KK on his forehead
and other parts of body and then all the accused fled away by making aerial
firing.
3. Learned counsel for the applicant contends that the
applicant is innocent and he has been falsely implicated in this case due to malafide intention and ulterior motive; that there is delay
of three days in lodgment of FIR and no plausible explanation has been
furnished for such delay; that there is inconsistency in medical evidence and
ocular version, as per FIR injured Mushtaque
sustained five injuries but medical certificate shows that he has sustained
only two injuries; that the injury attributed to applicant is on non-vital part
of the body which carries punishment up to five years; that offence does not
come within the prohibitory clause of section 497 Cr.P.C.; that charge has been
framed and applicant is regularly attending the trial court. He finally prayed
for grant of bail.
4. On
the other hand, learned Additional Prosecutor General, assisted by learned
counsel for the complainant contends that the applicant is nominated in the FIR
with specific role of causing fire arm injury to injured Mushtaque;
that PWs have supported the case of prosecution in their statements u/s 161
Cr.P.C; that ocular version is corroborated by medical evidence; that applicant
has failed to make out his case on the point of malafide
on the part of complainant to falsely implicate him in the present case. He
finally submits that applicant is not entitled for such extra ordinary relief
of pre-arrest bail. In support of his contention, learned APG relied upon the
case of Muhammad Siddique vs. Imtiaz Begum and 2 others (2002 SCMR 442).
5. Heard learned
counsel for the applicant, learned counsel for the complainant as well as
learned Additional Prosecutor General and perused the material available on
record.
6. Admittedly
there is delay of two days in lodgment of FIR, however record shows that
complainant has immediately approached to the Police Station on the same day
and reported the mater but police referred him to hospital for treatment and
certificate. Per provisional medical certificate issued by medical officer,
injured appeared in hospital at 6.40 P.M (within 40 minutes of incident), therefore,
in my humble view the delay has been well explained. Moreover applicant is
nominated in the FIR with specific role of causing fire arm injury to Mutshtaque and ocular version is corroborated by medical
evidence. As per final medical certificate, injured has sustained injury just
below the knee and there was fracture of lateral condyle of right labia, few
metallic opacities were seen and injury was declared as Jurh-Ghyr-Jaifah-Hashmiah
u/s 337-F(iii) P.P.C. Injured had sustained injury due
to discharge of fire arm, therefore, applicability of section 324 P.P.C. is
very much attracted in the case. Applicant has failed to make out his case on
the point of malice on the part of complainant to falsely implicate him in the
present case, which is pre-requisite condition for grant of pre-arrest bail. Prima
facie, sufficient material is available on the record to connect the applicant
with the commission offence which comes in prohibitory Clause of section 497 Cr.P.C. Hence, applicant is not entitled for grant of
extraordinary relief. Accordingly this bail application, having no merits, is
dismissed and the interim bail granted to applicant on 25.07.2022, is hereby
recalled.
7.
The observations made hereinabove are tentative in nature and would not
prejudice the case of any party at the trial.
J U D G E
Suleman Khan/PA