ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Bail Appln. No. S- 299 of 2023.

Date of hearing

Order with signature of Judge

07.08.2023.

1.         For orders on office objections.

2.         For hearing of bail application.

            Messrs Azhar Hussain Abbasi and Anwar Ali Shaikh, Advocates for applicant.

            Mr. Shakeel Ahmed G. Ansari, Advocate for complainant.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

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Shamsuddin Abbasi, J: Applicant Toufeeq Ahmed son of Iqbal Ahmed Shaikh has sought for post-arrest bail in Crime No.66/2023, registered with P.S  New Foujdari, Shikarpur, for offences punishable under Sections 324, 337-A (i), 337-F (i), 147, 148, 149, 504 P.P.C. Bail application moved by the applicant before learned trial Court i.e. 3^rd Additional Sessions Judge, Shikarpur was declined vide Order dated 06.06.2023.

2.         According to contents of F.I.R, the allegation against applicant is that on  09.04.2023 at 2.30 a.m. applicant in company of other co-accused made assault upon complainant party. Out of all the accused, only applicant Toufeeq Ahmed is alleged to have fired pistol shot upon PW Jamshed Ahmed (son of complainant), which hit him on his right leg.  Whereas, co-accused are alleged to have caused lathis and kicks blows to PW Jamshed Ahmed. The motive for the alleged incident, as set-out in the F.I.R is previous ill-will between the parties due to exchange of harsh words in between applicant Toufeeq and injured Jamshed Ahmed.

3.         Learned counsel for applicant mainly contended that, F.I.R is delayed for 12 hours, as the alleged incident is said to have taken place on 09.4.2023 at 2.30 a.m. whereas F.I.R was lodged on same date at 1400 hours. He further contended that parties are already on estrange terms each other; that alleged injury sustained by the injured is not on his vital part of body and there is no repetition of fires by any of the accused including present applicant, as such applicability of Section 324 P.P.C would be determined at the time of trial. Learned counsel further added that, the injury sustained by injured has been declared as “Ghayr Jaifah Munaqqillah”, falling under Section 337- F (vi) P.P.C,  and carries punishment for seven years only, as such it does not fall within prohibitory clause of Section 497 Cr.P.C. Learned counsel further contended that the applicant was arrested on 31^st May, 2023, and though he remained in police custody remand but there is no any recovery of incriminating article from his possession. In support of his case, the learned counsel has relied upon an unreported Order dated 29.05.2023 passed by Hon’ble Supreme Court of Pakistan in Criminal Petition Nos. 41-K and 42-K of 2023 (Jamaluddin and Rabail).

4.         Learned D.P.G. assisted by learned Advocate for complainant opposed grant of bail in favor of the applicant on the ground that he has been nominated in F.I.R., with specific role of making pistol shot at PW Jamshed with intention to commit his murder, but it was his luck that fire hit on non-vital part of his body; that the medical evidence supports version of complainant in F.I.R; and that ingredients of Section 324 P.P.C are fully attracted to the instant case, which falls within prohibitory clause of Section 497 Cr.P.C.

5.         Heard learned counsel for respective parties and perused the material available on the record.

6.         It appears from contents of the F.I.R that the parties are already on strange terms towards each other and in the background of such grudge it cannot be ruled out that F.I.R has been lodged after due deliberation and consultation. It further appears from the record that F.I.R is delayed about 12 hours for which no plausible explanation has been furnished by the complainant. The seat of injury sustained by injured Jamshed Ahmed i.e. leg, is not on vital parts of his body, and there is no repetition of fires by the accused, though he was completely on his mercy, as such intention of the accused to kill PW Jamshed Ahmed and question of application of Section 324 P.P.C would be determined at the time of trial. Moreover, the injury on the person of PW Jamshed Ahmed has been declared as “Ghayr Jaifah Munaqqillah”, which falls under Section 337- F (vi) P.P.C.,  carrying punishment for seven years, as such it does not fall within prohibitory clause of Section 497 Cr.P.C.

7.         An unreported Order dated 29.05.2023 of Hon’ble Supreme Court of Pakistan in Criminal Petition Nos. 41-K and 42-K of 2023 (Jamaluddin and Rabail) relied upon by learned counsel for the applicant is very much relevant to the facts and circumstances of the instant case. In this case the Hon’ble Supreme Court has been pleased to admit the accused (therein) to bail in the similar circumstances. It would be conducive to reproduce the relevant portion of the order, which reads as under:

                        “As per the contents of the crime report, the allegation against the petitioners is that they along with co-accused while armed with firearms launched a murderous assault on the complainant party. The petitioner Rabail made a straight fire on the complainant Kaleemullah, which hit on his left leg whereas the petitioner Jamaluddin caused firearm injury at the left ankle of Muhammad Pariyal, the cousin of the complainant. There is no denial to this fact that the F.I.R was lodged after an inordinate delay of about three days. The only explanation put forth by the complainant is that firstly they got the Police letter for treatment from Civil Hospital and after the treatment they lodged the F.I.R. However, this explanation does not seem to be impressive, especially when the Police was allegedly approached by the complainant on the very first day. The complainant and the injured PW received injuries on the non-vital parts of the body and the petitioners did not repeat the fire despite having ample opportunity to do so. In this view of the matter, the question whether Section 324 P.P.C would be applicable in the case or not would be determined by the learned Trial Court after recording of evidence. As far as the question which requires the attention of this Court is that petitioner Jamaluddin has been granted ad interim pre arrest bail by this Court whereas the other petitioenr Rabail has filed petition claiming post arrest bail. As far as the principle enunciated by this Court regarding the consideration for grant of pre arrest bail and post arrest bail are entirely on different footings is concerned, we have noticed that in this case both the petitioners are ascribed the same role. For the sake of arguments if it is assumed that the petitioner enjoying ad interim pre arrest bail is declined the relief on the ground that the considerations for pre arrest bail are different and the other is granted post arrest bail on merits, then the same would be only limited upto the arrest of the petitioner Jamaluddin because of the reason that soon after his arrest he would be entitled for the concession of post arrest bail on the plea of consistency. Reliance is placed on the cases reported as Muhammad Ramzan Vs. Zafarullah (1986 SCMR 1380), Kazim Ali and others Vs. The State and others (2021 SCMR 2086), Muhammad Kashif Iqbal Vs. The State and another (2022 SCMR 821) and Javed Iqbal Vs. The State through Prosecutor General of Punjab and another (2022 SCMR 1424). The Courts of this country are not meant to send the people behind the bars rather the purpose of the entire judicial system is to protect the liberty of the citizen agaisnt whom baseless accusation has been leveled keeping itself within the four corners of the law. The rational behind this principle would be defeated if on a technical ground a person is sent behind the bars. In Sharaf Faridi Vs. Federation of Pakistan (PLD 1989 Karachi 404) it was held that “Judiciary has been termed as a watch dog and sentinel of the rights of the people and the custodian of the Constitution. IT has been described as “the safety valve” or” the balance wheel” of the Constitution.” It was further held that Judiciary as the custodian of the fundamental rights ahs been charged with a duty as a watch dog to see that none of the fundamental rights of the people are abridged or taken away. This Court in a number of cases has held that liberty of a person is a previous right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and same cannot be taken away merely on bald and vague allegations. Taking into consideration all the facts and circumstances stated above, we are of the view that the case of petitioners squarely falls within the ambit of Section 497 (2) Cr.P.C, entitling for further enquiry into their guilt.

                        For what has been discussed above, we convert these petitions into appeals, allow it and set aside the impugned order. The ad interim pre arrest bail granted to the petitioner Jamaluddin in Criminal Petition No.41-K of 2023 by this Court vide order dated 17.4.2023 is hereby confirmed. Whereas, petitioner Rabail is admitted to bail subject to his  furnishing bail bonds in the sum of Rs.100,000/- with one surety in the like amount to the satisfaction of learned Trial Court.”

8.         In view of the foregoing and the dicta laid down by Hon’ble Supreme Court in case of Jamaluddin and Rabail (supra), instant bail application stands allowed. Consequently, applicant Toufeeq Ahmed Shaikh is admitted to post arrest bail upon his furnishing a solvent surety in the sum of Rs.200,000/- (Two hundred thousand rupees) and P.R bond in the like amount to the satisfaction of learned trial Court.

9.         Before parting with this order, it needs not to make clarification that the observations recorded hereinabove are tentative in nature, therefore, the trial Court shall not be influenced in any manner whatsoever while deciding the case.

                                                                JUDGE

Ansari/*