IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

1^stCr. Bail Application No.D-39 of 2023

Applicant : Muhammad Ishaque Kamboh, Through

Mr. Muhammad Akram Kamboh, Advocate.

Complainant : Muhammad Uzair, through Mr. Asif Ali Abdul

Razak, Advocate.

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

Cr. Misc. Application No.D-15 of 2023

Applicant : Muhammad Uzair, through Mr. Asif Ali Abdul

Razak, Advocate.

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

Respondent No.1 : Muhammad Afsar Kamboh.

Date of hearing : 20.12.2023

Date of decision : 20.12.2023

O R D E R

Muhammad Saleem Jessar, J.- Applicant Muhammad Ishaque son of Sulleman, by caste Kamboh, seeks post arrest bail in crime No.211/2023, registered at P.S. A-Section, Shahdadkot, for offence u/Ss. 353, 337-A(i), 427, 324, 506/2, 462(i), PPC read with Section 6/7, Anti-Terrorism Act, 1997. Such plea of the applicant has already been declined by the learned Judge, Anti-Terrorism Court, Larkana vide order dated 08.11.2023.

2. In nut-shell, the allegation against the applicant is that on 09.3.2023 he was installing illegal kunda connection in the Electricity Transformer and on being restrained by complainant Muhammad Aziz, SDO WAPDA Sub-Division, Shahdadkot, he taking out pistol from his fold aimed it upon the complainant and then caused blow by means of Pliers(Plass) on the forehead near eye of the complainant, which started bleeding; meanwhile other persons identified by WAPDA staff as Muhammad Afsar with iron rod, Muhammad Ashfaque armed with pistol and seven unidentified persons having iron rods, also emerged there and tried to kill the complainant and broken the wind screen of official vehicle and also issued threats of dire consequences to the complainant. Hence, FIR to the above effect was registered on disclosure of the complainant.

3. Learned Counsel submitted that in fact the complainant being SDO WAPDA had entered into the house of the applicant, where quarrel was made and in such scuffle son of the applicant, namely, Muhammad Ishfaque had sustained injuries on his person and such medico-legal certificate has already been submitted by him on last date of hearing. He next submitted that applicant has also filed direct complaint, which is still pending for preliminary enquiry and since there are injured from both sides and the parties claim to be innocent, therefore, accusation against the applicant is yet to be determined by the trial Court after recording evidence of the parties. As far as injury allegedly sustained by the injured/complainant is concerned, learned Counsel pointed out that per FIR the complainant had not identified the applicant while causing any injury; however, it is stated in the FIR that his subordinate had seen and identified the accused, therefore, case against him requires further enquiry.

4. Learned Addl. P.G. opposed the bail application, on the grounds that the applicant is nominated in the FIR, besides injury attributed to him has been declared to be Shajjah-i-Hashimah, falling under Section 337-A(iii), PPC, which carries punishment of 10 years, hence he is not entitled for bail.

5. Mr. Asif Ali Abdul Razak Soomro, learned Counsel for the complainant, while adopting the arguments of learned Addl. P.G. also opposed the bail application; however, when confronted as to the fact of sustaining injury at the hands of complainant party by the applicant’s son, he submitted that in fact a mob was gathered, therefore, son of applicant has sustained injury. He further submitted that complainant had also filed Cr. Misc. Application No.D-15/2023, thereby has challenged the bail granting order of co-accused Muhammad Afsar Kamboh, which is also listed today by the office at Sr. No.15 of the cause list.

6. Heard. Record perused.

7. No doubt the applicant is nominated in the FIR; however, the allegation so made in the FIR are to the effect that the complainant being SDO had entered into the house of applicant along with his subordinates, whereby scuffle was made which resulted the injury allegedly sustained by the complainant himself as well as son of applicant. The complainant had not justified the raid nor any permission was obtained by him from his high-ups regarding registration of the case against the applicant. Per FIR the applicant was allegedly having pistol in his hand, yet instead of using it he allegedly caused Pliers injury to the complainant which landed at his forehead near the eye; hence, I am of the view that when the applicant allegedly was armed with pistol, yet instead of making fire upon him, why did he cause Pliers blow, is also a dilemma which is yet to be established by the prosecution after recording its evidence and then the trial Court has also to determine the same. As far as alleged injury sustained by the complainant is concerned, since the son of applicant has also sustained injury at the hands of complainant party and both parties claim to be innocent; hence, which party was aggressor and which party has been aggressed upon, is a question to be determined by the trial Court after recording evidence of parties. I am fortified by the dicta laid down in the case of Meer Hassan & another v. The State 1987 PCr.LJ 1336. Before parting with the order, it will be appropriate to reproduce the relevant portion of said order, which reads as under:-

”………………………… I do not like to discuss the merits of the case but suffice to say there will be a serious question for consideration at the trial as to which party was aggressor and the mala fide and false implication due to influence of the complaint with police, therefore, it is a case of further enquiry.”

8. Accordingly and in view of above, the case against the applicant requires further enquiry within the meaning of Sub-section (2) to Section 497, Cr.P.C. Hence, this application was allowed by short order dated 20.12.2023, whereby applicant was directed to be released on bail subject to his furnishing solvent surety in the sum of Rs.100,000/- and P.R. Bond in the like amount to the satisfaction of trial Court. Above are the detailed reasons of said short order.

9. Consequently and in view of above, Cr. Misc. Application No.D-15 of 2023 re-Muhammad Uzair v. Muhammad Afsar Kamboh & another, has become infructuous and is hereby dismissed along with pending application(s).

JUDGE