ORDER SHEET

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

1^st Cr. Bail Appln. No.S-293 of 2023.  

Date of hearing                                Order with signature of Judge.

1.For orders on office objections as flag A.

                        2.For hearing of bail application.             

Applicant                       :      Through Mr. Mohammad Ali Memon, Advocate.

 (Aijaz @Aijaz Ali)      

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

Complainant                :      Through M/ Abdul Hameed Mangi and Atta Hussain Qadri, Advocates.

Date of hearing            :       29.01.2024.

O R D E R.

MUGHAMMAD SALEEM JESSAR-J.:-   Through this application, applicant seeks his admission on post arrest bail in Crime No.05 of 2023 of P.S Dilawar Marfani for offences under Sections 324, 114, 337-H(ii), 148, 149 PPC. Applicant filed post arrest bail application before the trial Court/4^th Additional Sessions Judge, Shikarpur viz-a-viz Cr.Bail Appln.No.414 of 2023 where after hearing the parties  his request was turned down vide order dated 27.05.2023, hence this application has been maintained.

2.                    Since the facts of the prosecution case are already mentioned in the FIR as well as bail application and the order passed by trial Court, therefore, there is no need to reproduce the same.

3.                     Learned counsel for the applicant  submits that the applicant has been falsely implicated in this case  in the background of previous enmity which is also admitted in the FIR and all the P.Ws of occurrence are admittedly relatives of the complainant therefore, their testimony can not be taken as gospel truth. Besides, there is delay of one day in lodgment of FIR for which no plausible explanation is furnished. As far as role attributed to the present applicant is concerned, allegedly he caused fire shot upon P.W Mohammad Yousif which hit him on thigh which is non-vital part of the body. He pointed out that the applicant did not repeat fire which suggests he had no intention to cause his murder as he had not repeated fire. He further submits that as far as recovery is concerned, it is yet to be established by the prosecution by recording evidence of prosecution witnesses and then trial court being competent has to determine it. Hence at this juncture, case against the applicant requires further enquiry and pray for grant of bail.

4.                     Mr.Ali Anwar Kandhro, Addl.P.G opposed the bail application on the ground that  applicant was not only nominated in the FIR but  also caused firearm injury to P.W Mohammad Yousif which hit him on his thigh, hence he is not entitled to the concession of bail.

5.                     Admittedly there has been long standing landed dispute between the parties and both the eye witnesses of the occurrence happen to be real brother and uncle of the complainant, therefore, false implication of present applicant in the background of previous enmity can not be ruled out. The FIR was lodged with delay of one day for which no plausible explanation  has been furnished by the prosecution. The role attributed to the applicant is he allegedly fired from his gun upon P.W Mohammad Yousif  which hit him on his thigh, which is non-vital part of the body.  The injured being empty handed was consequently at the mercy of accused/applicant, even then he did not repeat fire upon him, which shows that the applicant had no intention to commit his qatl-i-amad, therefore, application of Section 324 P.P.C could only be established after recording evidence at the trial. The injury attributed to the present applicant fall under Section 337-H(ii) Cr.P.C which does not fall within prohibitory clause of section 497 Cr.P.C.  In such circumstances, the accusation against applicant is yet to be determined by the trial Court after recording pro and contra facts through evidence. More over applicant being Pesh Imam in the locality has earned good repute and respect in the eyes of public and per learned counsel there is no other criminal record against the applicant.

6.                    It is well settled principle of law that every accused would be presumed to be blue eyed boy of the law until and unless he may be found guilty of alleged charge and law can not be stretched upon in favour of the prosecution  particularly  at bail stage. Reliance can be placed upon the case of Zaigham Ashraf v. The State and others (2016 SCMR 18).

7.                    Since the role assigned to applicant is that he allegedly caused firearm injury  to injured Mohammad Yousif which landed  on his thigh   which is a non-vital part of his body and the injury sustained by the injured has been declared by the   Medico Legal Officer to be punishable under Section 337-H(ii) PPC which carries maximum punishment upto seven years, hence does not exceed limits of prohibitory clause of section 497 Cr.P.C.

8.                    Upshot of the above discussion is that the applicant has made out good prima facie case for his release on bail within meaning of subsection 2 to section 497 Cr.P.C. Consequently, instant bail application is hereby allowed. The applicant shall be released on bail subject to furnishing solvent surety in the sum of Rs.50,000/= (Rupees fifty thousands) and P.R bond in the like amount to the satisfaction of learned trial Court.

9.                     It is needless to say that observations made herein above are tentative in nature which shall not influence the mind of the trial Court while deciding fate of the case finally.

            The  applicant stands disposed of.                                                                                                                                                                                   JUDGE

shabir