ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

1^st Cr. Bail Appln. No.S- 428   of   2023.  

Date of hearing                                Order with signature of Judge.

For hearing of  bail application.

Applicant

(Ghulam Mustafa)    :     Through Mr. Razi Khan Nabi Bux R. Chandio,

                                          Advocate along with Applicant (on bail).      

The State                  :     Through Mr. Ali Anwar Kandhro,  Addl. P.G.

Date of hearing            :       01.02.2024.

Date of Order                :      01.02.2024.

O R D E R.

Muhammad Saleem Jessar, J.-  Through this application, applicant Ghulam Mustafa son of Ali Bux, by caste Gaibani Chandio, seeks pre-arrest bail in Crime No.07 of 2023 of P.S Hamal, District Kamber-Shahdadkot, registered under Sections 324, 148, 149, PPC. Applicant filed anticipatory bail application vide Cr. Bail Appln. No.793 of 2023 before the Court of Sessions Judge, Kamber-Shahdadkot at Kamber, who after hearing the parties turned down his request vide order dated 31.07.2023, hence this application has been maintained.

2.                     According to the case of prosecution, on 03.07.2023, at 3.00 p.m., at the common thoroughfare located near the land of Aalam Shabrani, Deh Mirzanpur, Taluka Warah, present applicant along with five others, being armed with firearms and lathies, attacked upon complainant party, wherein the applicant, armed with gun, fired upon Muhammad Hassan, cousin of complainant Mst. Dur Naaz, hitting at the right side of his abdomen.

3.                     Learned Counsel for the applicant submits that on 03.07.2023 in the morning at 0830 hours, the injured of this case, namely, Muhammad Hassan and others had assaulted upon applicant party in which the brother of applicant, namely, Nadir Hussain had sustained injuries on his person; hence, he got registered FIR No.40/2023 with Faridabad Police Station on 05.7.2023, at 1400 hours, under Sections 324, 504, 34, PPC. He further submits that in order to counter the said FIR the present complainant, who is cousin of injured Muhammad Hassan, has got registered instant FIR/case on 07.07.2023, alleging therein that applicant had caused firearm injury to injured Muhammad Hassan, which landed at his abdomen. He submits that in fact no such incident has occurred, but the complainant party in order to save their skin from the severe punishment of law on account of the FIR lodged by brother of complainant Nadir Hussain vide Crime No.40/2023 have maneuvered this case, which is nothing but bundle of lies. He, therefore, submits that the prosecution has been motivated against the applicant only to malign his reputation and to exert pressure upon him, so that he may not pursue his case against the complainant party. As far as proceedings of trial are concerned, learned Counsel submits that complainant and PWs are not appearing before the trial Court and only MLO Dr. Ameer Ahmed Patoojo had been examined on 27.11.2023; hence, submits that by considering the above submissions instant bail application may be allowed and interim pre-arrest bail earlier granted to the applicant may be confirmed.

4.                     On the other hand, learned Addl. P.G. submits that though the injury attributed to the applicant is on vital part of body of the injured; however, said injury has been declared by the MLO to be punishable u/s 337-F(iii), PPC, which carries maximum punishment of 03 years; hence, does not attract the prohibition contained in Section 497, Cr.P.C, besides, that (injury) has not been shown to be detrimental to the life of injured. He, therefore, does not oppose the bail application.

5.                     Pursuant to directions, the trial Court has also submitted report in respect of trial of Sessions Case No.258/2023 re-The State v. Ghulam Mustafa Chandio & others, which reveals that after framing of charge on 09.09.2023 neither the complainant nor his witnesses are appearing before the trial Court for recording their evidence; however, only the MLO Dr. Ameer Ahmed Patoojo has been examined by the prosecution.

6.                     Admittedly, the FIR lodged by applicant’s brother Nadir Hussain is much prior to the lodgment of instant FIR; hence, the malafide on the part of complainant/prosecution cannot be ruled out. The FIR is also delayed for about four days, for which no plausible explanation has been furnished by the prosecution. The delay in criminal cases has always been held by the superior Courts to be fatal for the prosecution. The narration of the alleged incident starts in FIR with disclosure of enmity between the parties over the landed property. No doubt, the applicant is nominated in the FIR with specific role of causing firearm injury to injured Muhammad Hassan, but said injury has not been declared by the MLO to be detrimental to his life. Even then neither complainant nor injured have appeared before the trial Court to record their evidence, through which it could be deduced that the allegation so made has got weight. The case has been challaned and the applicant has also joined the trial proceedings and no complaint with regard to the misuse of concession has been brought on the record. In the wake of admitted enmity between the parties, the basic ingredients for grant of bail as laid down by learned Apex Court in the case of Rana Muhammad Arshad v. The State (PLD 2009 SC 427) are fully attracted in this case.

7.                     In the circumstances and in view of dicta laid down by Hon’ble Supreme Court in case of Rana Muhammad Arshad (supra) as well as the case reported as Khalil Ahmed Soomro & others v. The State (PLD 2017 SC 730), the case against the applicant requires further enquiry. Consequently, instant bail application is hereby allowed. Resultantly, interim pre-arrest bail earlier granted to the applicant vide order dated 07.08.2023 is confirmed on same terms and conditions.

                                                                                                JUDGE  

Qazi Tahir/*