ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANO

                                               

1st. Cr. Bail Application No. S- 474 of 2023

 

 

Applicant:                                         Gulsher son of Qamaruddin by caste Khakhrani, through Mr. Jamil Ahmed Brohi, Advocate.  

 

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

 

Date of hearing:                      23.11.2023

Date of order:                         23.11.2023

ORDER

 

Muhammad Saleem Jessar-J. Through this bail application, the applicant       Gulsher Khakhrani, seeks his release on post arrest bail in crime No.33/2020, registered at Police Station Nabi Shah Wagan, for offence under sections 302, 324, 148 and 149 PPC. As reported, after thorough investigation case was cahllaned by the police on 12.11.2020 which is now pending trial before the court of Additional Sessions Judge-1, Shikarpur vide Sessions Case No.566 of 2020 re: State V. Abdul Malik and others. The applicant filed post arrest bail application before the trial court which after hearing the parties was declined by means of common order dated 11.5.2023, hence this bail application has been maintained.

2.         Process issued against the complainant has been returned by ASI- Shahnawaz Narejo, of Police Station, NabiShah Wagan, unserved, taken on record. Per endorsement of the Process Server the complainant and the PWs are absconding in criminal cases therefore, service upon them has not been affected. 

3.         Per prosecution case co-accused Ali Dost, Badaruddin duly armed with Kalashnikovs, Waheed with Gun, Abdul Malik with Kalashnikov fired upon the husband of the complainant namely Abdul Latif Khakhrani, which landed on his person on different parts of the body; whereas, applicant Gulsher allegedly fired upon the PW Idrees which landed on his left leg below back side of knee. To such effect present F.I.R was lodged.

4.         After registration of case the police have started investigation and arrested co-accused Abdul Malik and the applicant on 15.10.2020.

5.         Learned counsel submits that alleged incident occurred on 12.10.2020 and FIR was registered on 13.10.2020 with the inordinate delay of one day for which no plausible explanation has been furnished by the prosecution. He next submits that in first portion of the F.I.R the applicant has been shown to have been armed with K.K whereas; in other part of the contents of the FIR the applicant Gulsher has been shown to have fired upon the injured deceased with his gun. However, the medico legal certificate issued by MLO concerned in respect of injuries sustained by injured PW Idrees shows only firearm injury. He further submits that the applicant is in custody right from the date of his arrest and more than three years have passed but prosecution has failed to procure the attendance of its witnesses, consequently trial against him has not been concluded. He therefore, submits that case against him requires further inquiry and pray for his release on bail. In support of his contentions he has placed reliance on the case(s) of Abu Bakar Siddique alias Muhammad Abu Bakar v. The State and others (2021 SCMR 540), Khiyal Saba and another v. The State and others (2020 SCMR 340) and Wajid Ali v. the State and another (2017 SCMR 116).    

5.         Learned Additional Prosecutor General for the State opposed the bail application on the ground that applicant has been nominated in the FIR with specific role of causing fire arm injury to injured PW Idrees and said injury has been declared by the MLO to be Jurah Ghayr Jaifah Damyah, which is punishable under section 337-Fi,PPC which is bailable. He however, arrogant to oppose the bail application. He however, does not controvert the fact that in the first part of the FIR the applicant has been shown to have been carrying K.Kove  whereas in other part of FIR he was shown to have fired from gun. During investigation the police has recovered gun from him being an offensive weapon.

7.         The complainant and PWs as per endorsement of process server are absconding therefore, have opted to remain absent instead of pursuing the application vigilantly.

8.         No doubt the applicant is nominated in the FIR with specific role of causing fire arm injury upon the PW Idrees but the injury allegedly sustained by the PW Idrees is on leg which being non-vital part of the body has not been shown by the MLO to be fatal for his life. The applicant is in custody right from his arrest i.e 15.10.2020 and more than three years have passed but the trial against him has not been concluded due to non appearance of the prosecution witnesses. The injury allegedly attributed to applicant is bailable. As far as application of section 324 PPC is concerned same is yet to be established by the prosecution after recording its evidence and then the trial court has to determine such accusation against him. Moreover, co-accused Ali Dost, Badaruddin, Waheed and Abdul Malik were assigned specific role of causing fire arm injuries to deceased Abdul Latif and out of them bail plea of Abdul Malik was declined whereas remaining three are still absconding. The applicant has not been assigned any injury or over act/specific role showing to have caused an injury to the deceased. In the circumstances and in view of above factual as well legal position of record the applicant has successfully made out a prima facie case of for his release on bail within meaning of subsection 2 of section 497 Cr.PC. Consequently, instant bail application is hereby allowed. The applicant shall be released subject to furnishing his solvent surety in the sum of Rs.300,000/- (Rupees Three Lac) and PR bond in the like amount to the satisfaction of trial court.

                                                                                                            JUDGE

S.Ashfaq/-