IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Bail Appln. No. S- 146 of 2023.

Applicant:                 Bashir Ahmed son of Ali Gohar Brohi, through Mr. Safdar Ali Ghouri, Advocate.

Respondent:              The State, through Mr. Gulzar Ahmed Malano, Asstt. Prosecutor General.

Complainant:            Naveed Ahmed Metlo, through Mr. Habibullah G. Ghouri, Advocate.

Date of hearing:        10.07.2023.

Date of decision:      10.07.2023.

O R D E R

KHADIM HUSSAIN SOOMRO, J: Applicant/ accused Bashir Ahmed son of Ali Gohar Brohi seeks post arrest bail in F.I.R No.22/2022 registered at P.S  Naudero for offences punishable under Sections 324, 148, 149 and 504 P.P.C.  His similar prayer was turned down vide Order dated 16.03.2023 passed by learned Additional Sessions Judge, Ratodero.

2.         On 25.3.2023, complainant Naveed Ahmed Metlo set the law into motion by lodging aforesaid F.I.R with P.S Naudero, alleging therein that they are inimical terms with Bashir Brohi party, however such “fasila” was held privately, but Bashir Brohi did not accept the same. The complainant further alleged in the F.I.R that in the morning of 25.3.2023, he, along with his cousin, namely, Aslam Metlo and his labourer  Muhammad Ali Khokhar, went to the land of Aslam to work there, and at about 09.00 a.m. they saw and identified accused Bashir Ahmed (applicant) armed with a gun, 2. Imtiaz has gun, 3. Altaf with a repeater, 4.Nisar armed with a pistol, 5. Asif with a gun, 6.Javed, 7. Zulfiqar armed with repeaters; out of them, accused Bashir Brohi, while abusing, directed the complainant party to go out of the land and saying so, he made a straight fire upon Muhammad Ali with the intention to commit his murder, which hit him and he fell down on the ground by raising cry. The rest of the accused persons made fires upon the complainant party, but those fires did not hit either. On cries of the complainant party and fires attracted the co-villagers to the scene of the offence, and on seeing them, the accused persons fled away. The complainant noticed that PW Muhammad Ali had an injury on his shoulder from the back side; he was bleeding and in semi-unconscious condition. The injured was shifted to Government Hospital Naudero, where he was referred to Larkana, leaving the injured in the hospital; the complainant went to police station Naudero and lodged F.I.R to the above effect.

3.         Learned counsel for the applicant mainly contended that applicant has been falsely booked in this case due to previous enmity, which has been admitted by complainant in the F.I.R. He next contended that there is delay of about 13 hours inlodging of the F.I.R.There is no motive to cause injury to the injured Muhammad Ali.He further added that the injury assigned to applicant is not on vital part of body of the injured. Learned counsel also added that ingredients of Section 324 P.P.C does not attract to the present case, as there was no repetition of fire by the applicant either upon injured or upon the complainant party, though they were completely on his mercy, as such intention of the accused to kill PW and question of application of Section 324 P.P.C would be determined at the time of trial after recording evidence of prosecution witnesses.Per learned counsel the injury assigned to present applicant has been declared as “Jurh Ghayr Jaifah Damiyah” falling under Section 337-F (i) P.P.C which carries punishment of only one year and is bail-able, as such this injury do not fall within prohibitory clause of Section of 497 Cr.P.C. Learned counsel also added that, there is no recovery of crime weapon from the possession of applicant, which may connect him with commission of alleged offence. Learned further submitted that the applicant has been in the jail since last four months; the investigation of this case has been finalized and custody of the applicants is no more required to police for the purpose of investigation.Learned counsel in support of his case relied upon 2013 P.Cr.L.J261; 2006 YLR 1423; 2008 SCMR 1436 and 2007 YLR 251.

4.         Conversely, the learned Advocate for the complainant opposed the grant of bail to the applicant on the grounds that the applicant has been nominated in F.I.R. with the specific role of making fire upon PW Muhammad Ali with the intent to murder him. The delay, if any, in registration of the F.I.R has been fully explained by the complainant by stating that at first instance, the injured was shifted to Naudero Hospital, where he was referred to Larkana and left the injured in hospital; the complainant went to the Police station and registered F.I.R. The injured has fully supported the version of the complainant in his statement recorded by the investigation officer under Section 161 Cr.P.C. The medical evidence also supports the ocular version and that there is also recovery of three empty cartridges from the place of the incident. The ingredients of Section 324 P.P.C are fully attracted in the case, and such offence falls within prohibition as contained in Section 497 Cr.P.C.

5.         Learned Asstt. P.G. appearing for the State has argued in the same line, as argued by learnedAdvocate for complainant.

6.          Heard learned counsel for respective parties and perused the material available on record. A perusal of the record contemplates that the delay in registration of the F.I.R. has been fully explained. It further appears that the applicant has been nominated in F.I.R with a specific role of causing gunshot injury to PW Muhammad Ali, hitting on his shoulder/ muscle. Such a version of the complainant is supported by the injured/ PW Muhammad Ali in his statement recorded in terms of Section 161 Cr. P.C, as well as by medical certificate of injured. However, it will make no difference that the injury caused by the applicant is the non-vital part because for fire-arm injury, the entire human body is a vital part. A bullet, causing injury to the shoulder of the injured, may pierce the head or chest with just a minor jerk of the hand of the accused. All this brings the case of applicant prima-facie within the spirit of Section 324 of the P.P.C, hit by statutory prohibition as envisaged in Section 497 Cr.P.C., and in view whereof, the accused cannot be granted a concession of bail in the absence of any consideration within the purview of subsection (2) of section 497 Cr.P.C. Even otherwise, a murderous assault, as defined in Section 324 P.P.C draws no anatomical distinction between vital or non-vital parts of the human body; once the trigger is pressed and the victim is effectively targeted, “intention or knowledge” as contemplated by the Section 324 P.P.C is manifested; the course of a bullet is not controlled or steered by assailant’s choice nor can he claim, any premium for poor marksmanship. Reference in this regard can be had from the case of Sheqab Muhammad v. The State, and others reported in 2020 SCMR 1486.

7.         In light of the above position, I am of the considered view that the applicant/ accused has failed to make out his case for grant discretionary relief of post-arrest bail; therefore, the bail application is hereby dismissed.  Needless to state that, observations made hereinabove are tentative in nature and will not cause prejudice to the case of either party at trial.

8.         The case law relied upon by learned counsel for the applicant is on different footing, even otherwise, the precedents in bail matters are of no help to a party, as it varies from case to case depending upon the facts of each case. 

                                                       Judge

Ansari