IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Bail Appln. No. S-352 of 2021
Cr. Bail Appln. No. S-269 of 2021
Cr. Bail Appln. No. S-270 of 2021
Cr. Bail Appln. No. S-352 of 2021
Applicant: Muhammad Panah Chandio and another
Through Mr. Abdul Hakeem Brohi, Advocate.
Complainant: Tariq Ali Chandio,
Cr. Bail Appln. No. S-269 of 2021
Applicant: Feroz Khan Chandio,
Through Mr. Habibullah G. Ghouri, Advocate.
Complainant: Mst. Azeema Khatoon Chandio
Cr. Bail Appln. No. S-270 of 2021
Applicants: Irshad Ali Chandio and another
Through Mr. Habibullah G. Ghouri, Advocate.
Complainant: Mst. Azeema Khatoon Chandio
Through Mr. Abdul Hakeem Brohi, Advocate.
State: Through Mr. Aitbar Ali Bullo, D.P.G
Date of hearing: 15-09-2021
Date of Decision: 15-09-2021
O R D E R
ABDUL MOBEEN LAKHO, J.- By this single order, I would like to dispose of following three criminal bail applications, which are arising out of counter cases.
i) Through Cr. Bail. Appln. No. S-352/2021, the applicants Muhammad Panah Chandio and Asghar Ali seek pre-arrest bail in Crime No.25/2021 of P.S. Waris Dino Machi, for the offence U/S 324,34 P.P.C, whose bail application was rejected by the learned Additional Sessions Judge, Ratodero vide order dated 16.07.2021.
ii) Through Cr. Bail. Appln. No. S-269/2021, applicant Feroz Khan Chandio, seeks post-arrest bail, whose bail plea was declined by the Additional Sessions Ratodero, vide order dated 15.06.2021.
iii) Through Cr. Bail. Appln. No. S-270/2021, the applicants Irshad Ali Chandio and Fida Hussain Chandio seek pre-arrest bail, whose bail application was rejected by the learned Additional Sessions Judge, Ratodero vide order dated 15.06.2021.
Both the applications are arising out of same F.I.R. No.26/2021, registered at Police Station Waris Dino Machi, for offence under Sections 324, 34 P.P.C.
2. Facts of the F.I.R bearing No.25/2021 lodged by complainant Tariq Ali Chandio are that on 28.05.2021 at 11-00 a.m, accused Ghulam Akbar, Muhammad Punhal, Asghar Ali and one unidentified person with open face took out pistols from their fold by saying that today they will not be spared and killed, saying so accused Ghulam Akbar opened straight fire with pistol upon Feroz Khan with intention to commit murder which hit him on his abdomen, accused Muhammad Punhal Chandio opened straight fire with pistol upon Feroz Khan which also hit him on abdomen, while accused Asghar Ali Chandio opened straight fire upon Irshad Ali which hit him on his head then all accused persons started firing with pistols upon Feroz Khan, complainant raised cries then all accused persons went away. The complainant shifted both the injured to Taluka hospital Ratodero, wherefrom both injured were referred to CMC hospital Larkana and after getting treatment the complainant went to Police Station and lodged the F.I.R.
3. Another counter F.I.R bearing No. 26/2021 lodged by complainant Mst. Azeema Khatoon at P.S. Waris Dino Machi for the same incident on the same date stating that accused Feroz Khan, Irshad Ali having pistol and repeater, accused Feroz Khan fired from pistol upon Ghulam Akbar which hit on his right side chest, accused Irshad Ali fired from pistol upon Asghar Ali which hit on his right knee and accused Fida Hussain fired from repeater upon Muhammad Punhal which hit on his left side neck and accused Fida Hussain caused repeater bull blows to Asghar Ali on his head. Thereafter accused went away. The complainant brought the injured to Taluka hospital Ratodero and there from they were referred to CMC hospital Larkana and after treatment, the complainant came to P.S. and lodged the above report. All the cases are counter cases, hence will be decided together.
4. Mr. Abdul Hakeem Brohi, learned counsel for applicants/ accused in Cr. Bail. Appln. No. S-352/2021 (F.I.R No.25/2021) submits that accused Ghulam Akbar and Mohammad Punhal have collectively fired with their pistol which on the abdomen of Feroz Khan, it has not been specifically attributed to any of the applicants/accused and applicant/accused Asghar caused firearm injury to P.W Irshad Ali which has not been declared by doctor as dangerous to the life of Irshad Ali. It is added from accused side Mst. Azeema Khatoon got registered counter FIR bearing Crime No.26/2021 with the same P.S against complainant party for the same incident, as result accused Ghulam Akbar and Mohammad Punhal have sustained firearm injury by the hands of complainant side.
5. Mr. Habibullah G. Ghouri, advocate learned counsel for the applicants/accused Feroz Khan, Irshad Ali and Fida Hussain in Cr. Bail. Appln. No. S-269/2021 and 270/2021 submits that applicants/accused are innocent and have falsely been implicated in this case by the complainant due to previous enmity, that there is inordinate delay of two days in registration of FIR, for which no plausible explanation has been given by the complainant; that applicants party has already lodged FIR bearing crime No.25/2021 against the complainant party of present incident promptly without loss of time and on the very day of the incident that is 28.05.2021; thus this is the case of counter version and both parties lodged the F.I.Rs. against each other for the same incident at the same Police Station and the place of incident shown in both the FIR is rice Mill of applicant/accused near village Waris Dino Machi; that bare reading of the contents of both the FIRs clearly show that the complainant party is the aggressor and they launched a murderous attack upon the applicant party while they were sitting peacefully in their own rice mill and fired upon applicant party and caused injuries to applicant/accused. The alleged offence for which applicants/accused have been nominated does not fall within the prohibitory clause of section 497 Cr.P.C. Lastly he has prayed for grant of bail.
6. Mr. Abdul Hakeem Brohi is appearing for applicants/ accused in Cr. Bail. Appln. No. S-352/2021 (F.I.R No.25/2021) is also appearing for complainant in counter case bearing Cr. Bail. Appln. No. S-270/20210 (Crime No.26/2021) submits that there are counter FIRs registered against each other and both parties have sustained firearm injuries in the same incident, it is yet to be determined at the time of trial that which party would be aggressor, alleged Sections applied in the FIR are not punishable for imprisonment for life or for 10 years, hence do not fall within the prohibitory clause of section 497 Cr.P.C. Lastly prayed for grant of bail.
7. Learned counsel for both the complainants admit that all the applicants/accused sustained injuries in counter cases, therefore, they have given no objection to the grant of pre-arrest and post arrest bail to the respective parties.
8. Learned Deputy Prosecutor General has raised no objection for grant of pre-arrest bail/post arrest bail to the applicants/accused in all the counter cases in view of no objection given by learned counsel for both the complainants.
9. I have considered the submissions of learned counsel for the parties and have gone through the material available on the record and the police file with their able assistance.
10. In view of above coupled with the fact of raising no objection by the complainants in all matters and so also by the learned D.P.G, this court granted the bail in the counter crimes, vide short order dated 17.09.2021, which reads as under:-
i) Applicant Feroz Khan Chandio is granted post arrest bail in Cr. Bail. Appln. No. S-269/2021 subject to furnishing solvent surety in the sum of Rs.100,000/- with P.R bond in the like amount to the satisfaction of trial court.
ii) Interim pre-arrest bail already granted to the applicants Irshad Ali Chandio and Fida Hussain Chandio in Cr. Bail. Appln. No. S-270/2021, vide order dated 18.06.2021 is confirmed subject to furnishing their additional surety of Rs.50,000/- each within 15 days to the satisfaction of Additional Registrar of this court.
iii) Applicants Muhammad Punhal Chandio and Asghar Ali Chandio are granted post arrest bail in Cr. Bail. Appln. No. S-352/2021 subject to furnishing their solvent surety in the sum of Rs.100,000/- each with P.R bond in the like amount to the satisfaction of trial court.
Below are the reasons of the above said short order:-
a) That there are counter versions of both the parties and in this connection the complainant party in F.I.R No.26/2021 concealed the facts regarding the injuries received by the applicants party for which F.I.R No.25/2021 was already registered at same Police Station showing the same place of incident and its time and date. The complainant party is accused party in counter cases and the accused party in all the counter cases sustained injuries, it is the duty of the trial court to appraise the evidence of the respective cases while deciding the same.
b) On tentative assessment of the material at the bail stage, if some doubt is created about the injuries as to who was responsible for the same, the same point will be determined by the trial court after recording evidence and it will be determined at the time of trial that which party would be aggressor and who was aggressed upon. Same is the position of the case in hand.
c) Moreover, all the injuries appear to be punishable upto 7 years and do not fall within the prohibitory clause of Section 497 Cr.P.C. Hon'ble Supreme Court of Pakistan in the case of Muhammad Tanveer versus The State and another (PLD 2017 SC 733), has held as under:-
"In cases of this nature, not falling within the prohibition contained in section 497, Cr.P.C., invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions."
d) Deeper appreciation of evidence is not permissible at the stage of bail and the same is to be decided tentatively. From the tentative assessment of material available on record and in view of no objection given by learned counsel for both the complainants, it appears that the applicants/accused have made out their cases for grant of pre-arrest bail/post arrest bail.
11. 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.
J U D G E
Abdul Salam/P.A