IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Crl. Bail Application No.S-457 of 2023

    

DATE OF

HEARING

 

ORDER WITH SIGNATURE OF JUDGE

 

                            For hearing of bail application

 

 

Date of hearing    28.08.2023

 

 

 

M/s Ghulam Murtaza Soomro and Syed Tanveer Abbas Shah, Advocate for applicants along with applicants.

 

Syed Sardar Ali Shah Addl. Prosecutor General, Sindh.

                                    ***************

 

                  O R D E R

 

 

 

KHADIM HUSSAIN SOOMRO, J;             Through instant bail application, applicants/accused Mushtaque Ahmed, Faiz Muhammad, Khadim Hussain, Imamuddin, Abdul Waheed, Deedar Hussain alias Deedar, Aijaz Ali @ Aijaz, Ghulam Murtaza, Ghulam Muhiuddin, Zain-ul-Abidin and Amjad Ali @ Amjad seek their admission on pre-arrest bail in Crime No.122/2023 Police Station, Ubauro for offence punishable under Sections 324, 337F(v), 337A(i), 337-F(i), 337L(ii), 147, 148, 149 PPC. The applicants preferred anticipatory bail application No.976/2023 before the Court of Additional Sessions, Judge-II, Ghotki, where, after hearing, the parties turned down their request; hence, instant bail application has been maintained.

 

2.      The crux of the prosecution case as unfolded in the FIR lodged by complainant Azad Ali, son of Rahib Memo, on 15.06.2023 at about 1800 hours at Police Station, Ubauro, stating therein that there was a dispute between Ghulam Mustafa Memon and Qadir Bux Memon over petty matters. On 14.06.2023, the complainant, his uncle Sajjad Hussain, son of Muhammad Sharif Memon were standing at Bagra Kori stop when at about 1700 hours, the accused, namely Mushtaque Ahmed armed Iron road, Faiz Muhammad, Khadim Hussain armed with lathis, Imamuddin, Abdul Waheed, Deedar, Aijaz, Ghulam Mustafa armed with Iron rod,

Ghulam Muhiuddin, Zain-ul-Abidin and Amjad, armed with lathies all by caste Memon R/o Village Bagra Kori Taluka Ubauro, came there and against arrival, they inquired as to why the complainant had assisted Qadir Bux Memon. They explicitly stated that they would not show mercy and intended to inflict harm against them. The applicant accused namely Mushtaque Ahmed Kori, has been accused of intentionally using an iron rod to cause harm to the complainant by striking the left side of his head. Similarly, the accused, Ghulam Mustafa, is alleged to have used an iron rod to strike the complainant's left muscle with the intention of causing harm. Deedar, another accused individual, is said to have used an iron rod to strike the complainant's fingers on their right hand in an attempt to cause harm. Aijaz, another accused individual, is alleged to have used an iron rod to strike the complainant's knee and right leg. Imamuddin, yet another accused person, is accused of using an iron object to strike Sajjad Hussain on the head. Abdul Waheed, another accused person, is alleged to have used an iron rod to strike Sajjad Hussain on his right arm and right shoulder. As a result of their actions, the complainant raised cries for help, leading Meer Hassan and Azhar Ali, who are the complainant's uncles, to come to their rescue. The accused, Fazi Muhammad, caused a lathi blow to Meer Hassan on his head, while accused Khadim Hussain caused a lathi blow to Azhar Ali on the head, accused Zain-ul-Abidin caused a lathi blow to Azhar Ali beside the elbow of his right arm, accused Amjad caused a lathi blow to Azhar Ali on lower of right leg, blood was pouring. Meanwhile, persons arrived there and made hakals, and then all accused persons went away along with Iron rods and lathis towards their residences. The complainant subsequently arrived at the Police Station and registered an FIR.

 

3.      Learned Counsel for the applicants contends that applicants have falsely been implicated by the complainant with malafide intentions and ulterior motives. The applicant accused asserts that the complainant party excavated the drainage line from the applicant accused's land, and the applicant accused tried to stop them from diverting the water supply. This action by the complainant party caused annoyance, leading to an attack on the applicant accused's party.  The defence counsel additionally contended that the accused party in question suffered a greater number of injuries inflicted by the complainant and others. He contends that the applicant party also lodged an FIR against the complainant party of this case bearing Crime No.124/2023 u/s 324, 337F(v), F(i), 147, 148, 149 PPC  at the same police Station and this is counter version case and it is yet to be determined at the trial that who is aggressor and aggressed upon. He further contends that medical evidence is inconsistent with ocular testimony and deep scrutiny of evidence is not permissible, nor was it the requirement of law at the bail stage.

 

4.      The learned Additional Prosecutor General contends that while there exists a state of hostility between the involved parties, it is essential to note that four individuals have suffered harm in this particular case. He further argued that the complainant party has also registered FIR being Crime No.124/2023 at the same Police Station wherein two persons have sustained injuries; he candidly submits that it seems that this case is of two versions wherein both the parties are alleging aggression against each other, who is an aggressor and who has been aggressed is to be determined at trial therefore, he records his no objection for confirmation of bail to the applicants. While learned counsel for the complainant vehemently opposed the confirmation of bail.

 

5.      Heard arguments of learned counsel for parties and perused the material available on the record.

 

6.      It has come on record that there is a 24-hour delay in the registration FIR, and it does not provide any rationale or justification for such delay. Applicant No.3, Khadim Hussain, the son of Imamuddin, has also registered FIR No.124/2023, wherein it is claimed that the complainant party, armed with a pistol and lathis, inflicted injuries against him and PW Sajid Ali, whose Medical Certificate is available on record. The Medical Officer opined the injury attributed to injured Sajid Ali in counter FIR as “diffused swelling over Right proximal 1/3 rd of the forearm near elbow,” and the kind of weapon was used as “ Hard and Blunt Substance” declared as Jurh Ghyr Jaifah Hashimah under Section 337F(v) PPC; punishable up to five years. The injuries attributed to the complainant party, in this case, were also opined by the Medical Officer as Jurh Ghyr Jaifah Hashimah and other hurts. Indeed, deep scrutiny of evidence is not permissible at the stage of bail. Furthermore, this is a counterblast of FIR No.124/2023 lodged by the present applicant party against the complainant party in which the accused in the counter case have also been granted pre-arrest bail. 

 

7.   Both participants presented their respective accounts of the occurrence, each offering their own perspective. Hence, it is plausible that the concealment of factual information from both parties cannot be brushed aside. Subsequently, upon the collection of evidence, the trial court must assess said evidence to determine the party responsible for initiating the aggression and the party subjected to said aggression. It is noted that these matters can be thoroughly discussed during the evidentiary proceedings at the trial. However, at present, it is not possible to raise any objections regarding the aforementioned stance, and it is not feasible to provide any preliminary determinations on which side is the aggressor. In such circumstances, the involvement of the applicant in the commission of the alleged offence requires further inquiry. The recognition of the fundamental right to personal liberty is firmly established in the Constitution of the Islamic Republic of Pakistan, 1973. It is imperative to note that this right cannot be deprived just based on unsubstantiated and ambiguous accusations. The situation at hand involves two conflicting accounts, which aligns with the well-established legal principle that when there are two versions presented in court, it falls directly within the scope of section 497(2) of the Code of Criminal Procedure. Reliance is placed on  Muhammad Umar Waqas Barkat Ali  V/S The State , Miran Bux v. The State (PLD 1989 SC 347), Sajid Hussain alias Joji v. The State (PLD 2021 SC 898), Javed Iqbal v. The State (2022 SCMR 1424) and Muhammad Ijaz v. The State (2022 SCMR 1271).

 

8.   The applicants are attending the trial Court regularly; therefore, recalling interim pre-arrest bail already granted to them will not serve any useful purpose. Consequently, the instant bail application is hereby allowed. The interim pre-arrest bail already granted to applicants vide order dated 27.06.2023 is hereby confirmed on the same terms and conditions. The applicants present are directed to continue their appearance before the trial Court till the final decision of the main case.

 

8.      Needless to mention here that observation made herein above are tentative in nature and trial Court may not be influenced of the same and decide the case on its own merits as per evidence and the material made available before it.

 

 

 

         Bail application stands disposed of in the above terms.

 

 

                                                              J U D G E

 

 

 

 

 

Ihsan/*