IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 349 of 2023.
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Applicant: |
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Abdul Hameed Jafferi son of Pandhi |
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through Mr. Muhammad Jafferi, Advocate. |
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Complainant: |
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Nawab Lodro, |
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through Mr. Atta Hussain Qadri, Advocate. |
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The State: |
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Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
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Date of hearing: |
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10.08.2023. |
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Date of Order: |
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10.08.2023. |
ORDER
Shamsuddin Abbasi, J: Through instant Criminal Bail Application, applicant Abdul Hameed Jafferi seeks his admission to post-arrest-bail in Crime No.45/2023, for offence under Sections 324, 337-A (i), 337-F (i), 337-H (2), 114, 147, 148, 149 P.P.C registered with Police Station New Foujdari, District Shikarpur; after rejection of his bail plea by the learned trial Court vide order dated 27.04.2023 and 22.06.2023.
2. It is alleged in the F.I.R by the complainant that on 08.03.2023 at about 07.30 a.m. the applicant along with co-accused duly armed with weapons formed an unlawful assembly and in prosecution of their common object made murderous assault upon complainant party. The applicant Hameed and co-accused Mansoor are alleged to have caused lathi blows to PW Zulfiqar Lodro, whereas rest of co-accused are alleged to have caused injuries to other prosecution witnesses. The motive for the alleged incident, as set out in the F.I.R is old enmity between the parties over landed properties.
3. Learned counsel for the applicant pressed this bail application mainly on the grounds that there is admitted enmity between the parties over landed property, as such in view of such enmity false implication of the applicant cannot be ruled out; that there is inconsistency between the medical and ocular evidence, as according to contents of the F.I.R the applicant Hameed and co-accused Mansoor are alleged to have caused lathi blows to PW Zulfiqar Lodro on his back side and head, however medical certificate of Zulfiqar Lodro mentions only single injury on his head and such injury does not fall within prohibitory clause of Section 497 Cr.P.C. Per learned counsel in view of above fact of inconsistency and in the background of previously enmity between the parties false implication of applicant cannot be ruled out and his case calls for further enquiry as envisaged by subsection (2) of Section 497 Cr.P.C.
4. Conversely, learned D.P.G. assisted by learned Advocate for complainant opposed the grant of bail to the applicant on the grounds that applicant is nominated in the F.I.R with specific role of causing lathi blow to PW Zulfiqar Lodro, thereby he actively participated in the commission of offence, and that the offence with which applicants stood charged falls within prohibitory clause of Section 497 Cr.P.C, therefore, he is not entitled for grant of relief. However, he could not controvert the fact that there is inconsistency in ocular and medical version.
5. Heard learned counsel for the respective parties and perused the material available on record. The enmity between the parties over landed property is admitted by complainant himself in the F.I.R. It is matter of record that, the complainant has assigned specific role of causing lathi blows on back side and head of PW Zulfiqar Lodro to applicant Abdul Hameed and co-accused Mansoor. The complainant has specifically mentioned seat of each injury on the person of injured, but medical report of PW Zulfiqar shows only single injury on his head. Thus, in view of inconsistency in medical and ocular evidence; the case of the applicant is fully covered by Section 497 (2) Cr.P.C calling for further inquiry into his guilt. Even otherwise, the only injury on person of Zulfiqar Lodro has been declared as “Shajjah-i-Khafifah” falling under Section 337-A (i) P.P.C., which is bail-able, carrying punishment upto only two years and do not fall within prohibitory clause of Section 497 Cr.P.C. Furthermore, the investigation of the case has been finalized and physical custody of the applicant is no more required to police for the purpose of investigation and he is in custody since 09.03.2023 without any progress in trial of the case. In these circumstances continuous custody of the applicant in jail is not likely to serve any beneficial purpose at this juncture.
6. The Hon’ble Supreme Court in case of Mukaram v. The State and another (2020 SCMR 956), in similar circumstances granted bail to accused. It was observed by Hon’ble Supreme Court as under:
“There is no denial to this fact that four persons are involved in this case with allegations of causing indiscriminate firing. The deceased sustained only one injury to his person which proved fatal, such allegation is generalized in nature and no one can be saddled with responsibility of causing injury to the deceased”.
7. In identical situation the Hon’ble Supreme Court of Pakistan in the case of Walayat and another v. The State (1984 SCMR- 530) has also granted bail to accused on the point of inconsistency in medical and ocular evidence. It was held by Hon’ble Supreme Court under:
“With regard to Walayat petitioner, he is alleged to have given a hammer blow on the ankle of the deceased but no such injury was found on the person of the deceased. On examining the post-mortem report we find it to be correct. He, too, is entitled to bail.”
8. In view the above facts and circumstance and the dicta laid down by Hon’ble Supreme Court of Pakistan in cases (supra), the case of applicant seems to be one of further enquiry as contemplated in subsection (2) of Section 497 Cr.P.C. Consequently, the instant bail application stands allowed and applicant Abdul Hameed is admitted to post arrest bail upon furnishing a solvent surety in the sum of Rs.100,000/- (One 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