IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Crl. Bail Application No.S-436 of 2022

    

DATE OF

HEARING

 

ORDER WITH SIGNATURE OF JUDGE

 

1.   For orders on M.A. No.4706/22.

2.   For orders on O/objection at flag-A.

3.   For hearing of bail application.

 

 

Date of hearing     14.11.2022

 

 

Mr. Ghulam Shabir Shar advocate for applicant.

Mr. Iqbal Ahmed Ujjan Advocate for complainant.

Mr. Shafi Mohammad Mahar Deputy Prosecutor General for State.

                   ***************

 

 

O R D E R

 

 

Abdul Mobeen Lakho, J;        Through instant bail application, applicant Orangzeb son of Rustam Khan Jatoi seeks his admission on post-arrest bail in Crime No.12/2011 Police Station Landhyoon district, Khairpur under Sections 324, 337F(iii), 337F(v), 337H(ii), 148, 149 PPC. Earlier his bail application was declined by learned Additional Sessions Judge, Gambat vide order dated 03.02.2022.

 

2.       The facts of the prosecution case are that dispute arose between complainant and applicant party over partition of land to which applicant issued threats to complainant party not to cultivate the land. On 03.06.2021 complainant alongwith his cousin Akash Ali, Shahid Hussain and maternal cousin Abdul Majeed were present at the land, it was about 0600 hours accused Aurangzeb Jatoi armed with repeater, Sajid Ali, Zamir, Rashid, Iqbal armed with K.Kovs, Gulab and Barkat both armed with repeaters, Barkat armed with gun came at the land of complainant that they have already warned them not to come at land but you have not obey our orders saying so accused Aurangzeb with repeater  and Rashid with K.Kov made straight fire at Abdul Majeed Jatoi who while raising cries fell down on the ground. On cries and firing neighbourers came running there gave hakals to accused persons and on seeing them they ran away by making aerial firing. Complainant then arranged conveyance, took injured, obtained letter for medical treatment and after treatment he appeared at Police Station and lodged FIR against accused persons. 

 

3.       Learned Counsel for the applicant contends that applicant has falsely been implicated by the complainant due to dispute over landed property; that there was two days delay in lodgment of FIR for which no plausible explanation has been furnished by complainant; that applicant is practicing lawyer; that complainant and applicant are known to each other; that all accused encircled the complainant party but injury has been received only one person, apparently is clear injury does not fall within the prohibitory clause of  Section 497 Cr.P.C; that injured has received two injuries one of Repeater and one of K.Kov but injuries are not specifically attributed that who has caused the injuries is yet to be determined at trial after recording evidence of PWs; that applicant/accused is behind bars since 20.05.2022 since more than six months. He further contends that injuries are on non-vital part of body and there is no repetition of fires. By contending so, he prayed for grant of bail. in support of his contentions he has relied upon the cases of Tariq Bashir and 5 others v. The State (PLD 1995 Supreme Court 34), Abdul  Majeed and another v. The State (2009 YLR 344),  Muhammad Umar  v. The State and another  (PLD 2004 Supreme Court 477), Muhammad Ramzan v. The State and another (2016 YLR 2727).

 

4.       As against, learned Deputy Prosecutor General assisted by Mr. Iqbal Ahmed Ujjan, learned Counsel for complainant vehemently opposed the grant of bail; that applicant/accused is specifically nominated in the FIR with a specific role of causing firearm injuries on the left forearm near elbow joint and right conjoined region of injured Abdul Majeed is alleged against him; that ocular account stands contradicted by medical evidence as applicant directly made fires at injured Abdul Majeed Jatoi which he received; that I.O. has collected ten empties of 12 bore and 06 empties of K.Kov from the place of wardat. He prayed for dismissing the bail application. In support of his contentions he relied upon the cases of Aurangzeb v. The State and others (2022 SCMR 1229), Sheqab Muhammad v. The State and others (2020 SCMR 1486), Ghazan Khan v. Mst. Ameer Shuma and another (2021 SCMR 1157) and Haji Shahbehram v. The State and others (2021 SCMR 1983).

 

5.       I have considered the arguments advanced by learned Counsel for parties and have gone through the record.

 

Perusal of record reveals that name of present applicant appears in the FIR with specific role of causing firearm injuries to injured Abdul Majeed as he being armed with repeater caused injuries to injured on his left forearm near elbow joint and right conjoined region which is supported by medical evidence. From the perusal of medical certificate the injured has received two injuries. The Medical Officer opined injury No.(i) as Ghyr Jaifah Mutalahimah and Ghyr Jafiah Hashima while injury No.(ii) as Ghyr Jaifah Mutalahimah punishable u/s 337F(iii) & F(v) PPC caused by firearm and the punishment provided is upto Five years. Further, the complainant has alleged motive that applicant/accused exchanged hot words with the complainant party over dispute over landed property. So far as the delay in lodging the FIR is concerned, prima facie, the FIR itself shows that it is well explained. No doubt in the cases cited by the learned Advocate, bail was granted but in each one of them, the facts and circumstances were quite different and thus they were distinguishable. The Section 324 PPC draws no anatomical distinction between vital or non-vital parts of human body. Once the triggered is pressed and the victim is effectively targeted, “intention or knowledge” as contemplated by the section ibid is manifested; the course of a bullet is not controlled or steered by assailant’s choice nor can he claim any premium for a poor marksmanship. While taking the guidance from the case of Sheqab Muhammad v. The State and others (supra), the Honourable Supreme Court of Pakistan has held that;

 

“Injury on the non-vital part of the body, particularly in the absence of repeated fire shot, squarely brings his case within the remit of further probe, are not only beside the mark but also cannot be attended without undertaking an in depth analysis of the prosecution case, an exercise forbidden by law at bail stage. In a daylight affair, two persons sustained firearm injuries besides the one having endured violence through blunt means and as such requires no public support to drive home the charge; their statements supported by medical examination of even date, cumulatively bring  petitioner’s case prima facie within the mischief of section 324 of the Pakistan Penal Code, 1860, hit by statutory prohibition, in view whereof, he cannot be released on bail in the absence of any consideration within the purview of subsection (2) of Section 497 of the Code Ibid. Similarly, murderous assault as denied in the section ibid draws no anatomical distinction between vital or non-vital parts of human body. Once the triggered is pressed and the victim is effectively targeted, “intention or knowledge” as contemplated by the section ibid is manifested; the course of a bullet is not controlled or steered by assailant’s choice nor can he claim any premium for a poor marksmanship. Exercise of discretion by the High Court being well within the bounds of law calls for no interference. Petition fails. Leave declined.” 

 

         

There is no denial to this fact that the accused being armed with repeater is specifically nominated in the crime report wherein a specific accusation of causing firearm injuries on the person of injured on his left forearm near elbow joint and right conjoined region is against him. The matter thus was reported to the police with a delay but it is an admitted fact that the instant occurrence has taken place in the broad daylight and there is no chance of any misidentification especially when the parties are known to each other. The injuries ascribed to the applicant/accused are supported by medical evidence, prima facie, constituting the offence alleged, every hypothetical question which can be imagined would not make it a case of further inquiry simply for the reason that it can be answered by the trial subsequently after recording and evaluation of evidence. The offence with which applicant/accused is charged falls within the ambit of prohibitory clause of Section 497(2) Cr.P.C.  

 

In view of above, I am of the considered view that the applicant/accused has failed to make out a case for grant of bail. Accordingly, the bail application is dismissed.

 

 Bail application stands disposed of in the above terms.

 

                                                                                                J U D G E

Ihsan