THE HIGH COURT OF SINDH, CIRCUIT COURT,LARKANA

 

Criminal Bail Appln. No. S-35 of 2023

                                                                                                    

 

Applicant

 

Asghar Ali Brohi,

 

 

Through Mr. Suhendar Kumar, Advocate

 

 

 

Complainant

 

Dost Muhammad

 

 

Through Mr. Khadim Hussain Khoso, advocate

 

State

 

Mr. Aitbar Ali Bullo, D.P.G for the State

 

Date of hearing

 

30-03-2023

Date of order

 

30-03-2023

 

 

 

 

 

 

 

 

 

                                                            O R D E R

 

ZULFIQAR ALI SANGI, J.- Through instant criminal bail application, the applicant/accused Asghar Ali Brohi seeks post arrest-bail in Crime No.134/2022, registered at Police Station A-Section Shahdadkot, for the offence U/S 324,148, 149 P.P.C, after rejection of his bail plea by the learned Additional Sessions Judge-1, Shahdadkot, vide order dated 22.11.2022.

2.                                           The facts of the incident are mentioned in the memo of bail application and the copy of F.I.R. is also attached with the bail application, hence, needs not to reproduce the same here.

3.                                           Learned counsel for the applicant/accused submits that the applicant/accused is innocent and has falsely been implicated in this case by the complainant; that there is admitted enmity in between the parties; that there is delay of five days in lodgment of FIR which has not been explained.  Five persons who are real brothers have been involved by the complainant and as per medical certificate injury caused to the injured falls under section 337-F(iii) PPC which provides punishment for three years; that applicant has not been repeated any fire shot and nor any other PW received injury; that co-accused who are real brothers of the applicant have been granted post arrest bail by learned trail court, as such learned counsel submits that applicant is also entitle for grant of bail.  He relied upon the case law reported as Faisal alias Mithu v. the State and another (2016 MLD 2048).

4.                                           On the other hand, learned D.P.G. assisted by learned counsel for the complainant opposed grant of bail to the applicant/accused on the ground that applicant is nominated in this case with a specific role of causing fire arm injuries to PW Ramzan son of complainant and all the prosecution witnesses have fully supported the case of prosecution. One empty was recovered from the place of incident and a crime weapon was recovered at the time of arrest of the applicant which was sent to the ballistic expert, and the FSL report is positive; that the offence falls within the prohibitory clause of Section 497 Cr.P.C. Learned counsel for the complainant has relied upon the case law reported as Habib Ullah Jan and another v. The State through A.G Khyber Pakhtunkhwa and others (2020 SCMR 1278). They prayed that bail application of applicant/accused is may be dismissed.

5.                                           Heard learned counsel for the applicant, learned counsel for the complainant, learned D.P.G. and perused the material available on the record with their able assistance.

6.                                           Admittedly the applicant/accused has been nominated in the F.I.R with specific role of causing fire arm injuries to PW Ramzan son of complainant on his vital part of the body. The delay in registration of FIR has been explained properly by the complainant as according to complainant he firstly saved life of his son and later-on went to police station and registered the FIR. The applicant was arrested on 18.10.2022 and there is recovery of one empty and pistol, which is alleged to be used by the applicant. F.S.L report is positive. The medical evidence also supports the case of prosecution; section 324 PPC provides punishment up to 10 years however, for the injury there is an addition punishment provided under section 324 PPC.  Therefore, offence falls under prohibitory clause of section 497 Cr.PC. 

                        In the case of Habib-ullah Jan supra the Hon'ble Supreme Court has held as under:-

                              "Having heard to the magnitude of violence endured by the witnesses, no less than three in number, prima facie, supported by medical evidence, statements of the witnesses and spot recoveries, the High Court having found reasonable grounds, standing inn impediment to petitioners' release on bail in the absence of any consideration calling for further probe so as to circumvent statutory bar embodied in section 497 of the Code of Criminal Procedure, 1898, declined the request, a conclusion arrived at in its discretion and on our own analyses, found by us as intra vires being judicially structured, no interference is called for".

7.                      Considering the above facts, I am of the view that prima facie there is sufficient material available on record to connect the present applicant with the alleged offence, learned counsel for applicant has failed to make out a case for grant of post-arrest bail. Resultantly instant criminal bail application is hereby dismissed.

2.                                           Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial court while deciding the case of either party at trial.

J U D G E

 

S.Ashfaq/PS