ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr. Bail Appl. No.338 of 2009
DATE ORDER WITH SIGNATURE OF JUDGE
26.11.2009.
Mr. Raja Jawad Ali Sahar Advocate for applicant.
Mr. Shahid Ahmed Shaikh Assistant Prosecutor General Sindh for State
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Ahmed Ali Shaikh J. Through the instant application, applicant Shahid Ali seeks post arrest bail in crime No.115/2009 of Police Station Kotri for offence punishable u/s 324, 147,148,149, 504, 337 H(ii) PPC.
2. The bail plea of the applicant has been turned down by learned trial court vide order dated 20.05.2009.
3. The facts leading to the bail application are that on 11.05.2009 complainant Khamiso @ Gohar Ali Khokhar lodged report at P.S Kotri. The contents whereof reads as under:
“"Complaint is that I am residing at above mentioned address alongwith my family members. On 3.5.2009 I, alongwith Khadim Hussain and Qamaruddin and other family members were available at our home when at about 1100 hrs the door of our house was knocked then I went outside and saw that each one (1) Muhammad Jumman who had lathi in his hand, 2. Javed who had a gun in his hand, 3. Wajid who had iron rod, 4. Shahid who had Axe in his hand, 5. Mujahid who had pistol in his hand and one unknown person who had pistol whom I saw clearly and can identify on seeing again. They abused me and other accused issued threats that you withdraw from the case registered against them, otherwise you would be killed and murdered on such I started cries, which attracted Khadim Hussain and Qamaruddin who rushed towards us, on seeing them the accused with the intention of killing attacked me and beaten me, accused Shahid who had axe in his hand, gave handle blow on my right arm. On receiving the blow I laid down on the earth and other accused beaten with kicks and fists to Khadim Hussain and Qamaruddin then we started cries on our cries Mazhar ali Huzoor Bux and others came there. Thereafter while making aerial firing the accused fled away. Thereafter above P.Ws took me at the P.S Kotri and after taking letter I was referred to LUMHS. I was remained at the hospital for treatment. Now I appear and lodge this F.I.R. Investigation to be made."
4. It is inter alia contended by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in this case due to previous enmity; there are counter versions arising from the same occurrence as prior to this FIR, Wajid Ali, brother of the present applicant appeared at Police Station Kotri, where he disclosed that he as well as his brother applicant Shahid Ali had received injuries during scuffle. He further contended that FIR has been lodged with delay of 8 days and no plausible explanation has been given in this regard; that the injury of complainant Khamiso has been declared as Ghyre-e-Jaifah Munaqillah which is punishable upto 7 years and same is not on the vital part of the body of the victim. He lastly contended that per contents of FIR, the applicant had used blunt side of hatchet in the alleged occurrence and all the family members of applicants have been dragged in this case in order to create maximum trouble for his family and there are no reasonable grounds to believe that the applicant is guilty of the any offence punishable with death, imprisonment for life or 10 years and that co-accused has been admitted on bail.
5. Mr. Shahid Ahmed Shaikh Assistant Prosecutor General Sindh for State has vehemently opposed the bail plea of the applicant and stated that the name of the applicant appears in the FIR with specific role as the applicant had caused blunt side of hatchet blows to the victim at his arm.
6. Heard arguments and perused the case papers available on record.
7. The allegation against the applicant Shahid Ali is that he caused blunt side hatchet blows at the right arm of the victim. The FIR reveals that at the time of alleged occurrence, the applicant used blunt side of hatchet, therefore, the intention to commit the murder of victim is out of consideration and applicability of section 324 PPC requires further inquiry. Per medical certificate, the injury has been opined as Ghyr-e-Jaifah Munaqillah, which is punishable upto 7 years. The applicant is behind the bars since 12.05.2009 and the trial of the case will likely take considerable time. Since the offence does not fall within prohibitory clause of section 497(i) Cr.P.C and in likewise cases, basic rule is bail and its refusal is an exception. So for the case of the present applicant is concerned, the same does not fall within the exception as laid down by their lordships in Tarique Bashir’s case reported in PLD 1995 SC 34.
8. For the foregoing reasons, I am of the considered view that the applicant has made out a case for bail. I, therefore, allow this application and admit the applicant on bail subject to furnishing surety in the sum of Rs.50,000/- with P.R bond in the like amount to the satisfaction of the trial court.
The Criminal Bail Application No.338/2009 stands disposed of.
JUDGE
A.K