ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANO

Cr. Bail Application No.S- 476 of 2023

Applicant(s):                                     Abdul Waheed, Abdul Latif, Abdul Wahab and Fazul-ul-Rehman all by caste Jafferi, through Mr. Ghulam Mustafa Junejo, Advocate.  

The State:                                          Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.

Complainant:                                    Ali  Nawaz through Mr. Shakeel Ahmed G. Ansari, Advocate.

Date of hearing:                     23.10.2023.

Date of order:                         23.10.2023.

ORDER

Muhammad Saleem Jessar-J. Through this bail application, the applicants seek their admission on pre-arrest bail in Crime No.51 of 2023 for offence under sections 324, 114, 337-H (ii), 506/2, 147, 148, 149 PPC registered at Police Station Khanpur. The applicants preferred their pre arrest bail before learned Sessions Judge, Shikarpur which was then assigned to          III- Additional Sessions Judge, Shikarpur, who vide order dated 15.8.2023 dismissed the same. Hence, instant bail application has been filed.

            As reported the case has been challan which is now pending for preliminary proceedings before the Court of Judicial Magistrate, Khanpur.

The facts of the case are mentioned in F.I.R, copy whereof has been attached with the memo of bail applications, hence need not to be reproduced here again.

            Learned counsel for the applicants submits that there are cross cases between the parties and the injured Asoodo who is accused in the case registered by accused side being FIR No.53 of 2023 registered at Police Station, Khanpur has been granted bail by III-Additional Sessions Judge, Shikarpur. Role assigned to present applicants Abdul Waheed is he caused sharp side hatchet blow to Asoodo which landed on his head whereas Abdul Latif caused hatchet blow to Asoodo which landed on his right shoulder whereas Abdul Wahab caused hatchet blow to PW Shahmeer which landed on his head and Fazul-ul-Rehman caused hatchet blow to complainant which landed on his head. He next submits that the injury attributed to applicants are belied by medical evidence and per medico legal certificate the injured is shown to have sustained injuries with hard and blunt substance instead of any sharp cutting weapon. Learned counsel claims that there are cross cases between the parties and injured Asoodo who is accused in their F.I.R bearing crime No.53 of 2023 registered at Police Station, Khanpur has been granted bail as such the case of present applicants is at par to that as such he prayed that the interim pre arrest bail may be confirmed.

            Learned Additional Prosecutor General, Sindh in view of above does not oppose the confirmation of bail.

            Mr. Shakeel Ahmed G. Ansari, learned counsel for the complainant opposed the grant of bail on the ground that applicants have been assigned specific role of causing hatchet blows to the PWs therefore, they are not entitled for the grant of bail. He however, confirms that negotiations between the parties for compromise outside the court are going on. 

            Admittedly, the injuries allegedly sustained by the injured either are on their non vital parts of the bodies or bailable. The injuries allegedly sustained by the PW-Asoodo on vital part of the body are concerned same as per medical certificate are declared as Shuja-e-Khafifa which are bailable. As far as application of section 324 PPC, is concerned same is to be established by the prosecution after recording evidence of its witnesses. There is counter version of the incident, hence which party was aggressor and which party aggressed upon? Is a question which will be decided by the trial court at the time of trial. Moreover, injured Asoodo who is accused in the case of applicants’ side in FIR bearing No.53 of 2023 registered at Police Station, Khanpur has been granted bail. The case has finally been challaned. The applicants have joined the trial. In these circumstances, a case for grant of pre-arrest bail on point of malafide in favour of the applicants obviously is made out.

                        In case of Khalil Ahmed Soomro and others Vs. The State  (PLD 2017 SC-730),  the Hon’ble Apex Court has held that;

“5. In this case, it appears that net has been thrown wider and the injuries sustained by the victims except one or two, have been exaggerated and efforts have been made to show that the offences are falling within those provisions of law, punishable with five years or seven years' imprisonment. All those aspects if are combindly taken, may constitute element of mala fide”.

                        In view of above, the interim pre-arrest bail already granted to the applicants vide order dated 24.08.2023 is hereby confirmed on same terms and conditions.

                        The instant bail application is disposed of accordingly.

                                                                                                             J U D G E

S.Ashfaq/-