ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDEARBAD
Cr. Bail. Appl. No.S-366 of 2009
Date ORDER WITH SIGNATURE OF JUDGE
FOR HEARING
21.12.2009
Mr. Abdul Sattar Sarki Advocate for the applicants a/w applicants Rajo Khan, Haji Akber, Mehbooob and Shahnawaz.
Mr. Shahid Ahmed Shaikh Assistant Prosecutor General Sindh for State
Mr. Muhammad Azeem Panhwar Advocate for complainant.
=
Ahmed Ali Shaikh J: The applicants Rajo Khan, Haji Akber, Mehmood and Shahnawaz seek pre arrest bail in crime No.117/2009 of Police Station Rukkan District Dadu for offences punishable u/Ss 324, 395, 337 H(ii), 511, 148,149 PPC.
2. Vide order dated 16.06.2009, the applicants were admitted on interim pre arrest bail by this court.
3. The facts giving rise to the present application are that on 30.05.2009, complainant Abdul Ghaffar Panhwar lodged report at P.S. Rukkan alleging therein that on 25.05.2009, he alongwith his father in law Ghulam Qadir, uncle Abdul Sattar, cousin Muhammad Ayoob and Anwar went to the water course at their lands and came back to the house of their relative Amanullah, where at about 2.00 p.m. (noon time) accused each Rajo Khan, 2. Ashique 3. Haji Akber 4. Jabbar 5. Mehboob 6. Shahnawaz 7. Aziz and three unidentified persons entered in the house. Out of them, Rajo Khan was armed with DBBL gun, Ashique was armed with Kilashankov, Haji Akber with DBBL gun, Jabbar with K.K, Mehboob with DBBL gun, Shahnawaz and unidentified persons were armed with Kilshankoves. After challenging the complainant party, accused Rajo Khan, Ashique and Haji Akber, removed the four buffaloes, three cows and were going outside. The complainant party tried to save their cattle on which Akber fired with his DBBL gun with intention to commit murder, which hit Ghulam Qadir below his right eye, accused Rajo caused fire arm injury with his gun to Anwar at the right side of his renal, accused Shahnawaz caused fire arm injury with his K.K. to Abdul Sattar at the right side of his belly while accused Mehboob caused gun shot injury to Muhammad Ayoob at his left side of mussel. Thereafter, after leaving the cattle, accused left the scene. The complainant brought the injured at Police Station, obtained letter for treatment and later on after obtaining order from Ist Additional Sessions Judge, Dadu, registered the case.
4. It is inter alia contended by the learned counsel for the applicants that the prosecution case is false, fabricated and unbelievable. The present FIR is counterblast of FIR bearing crime No.125/2008 and 107 of 2009 which were lodged by co-accused Abdul Latif against the complainant and his relatives. The injuries sustained by the injured are on non vital parts of their bodies; the applicants are close relatives interse and have been roped in this case with malafide intention and ulterior motive; the parties are inimical to each other due to dispute over the land; sections 324, 395 and 337 H(ii) PPC are not applicable in the case in hand; F.I.R is belated by five days and no plausible explanation is given by the prosecution. In support of his contentions, learned counsel has relied upon the case of Abdul Sattar Narejo Vs. The State (2007 YLR 2009), Raja Vs. The State (2008 YLR 678), Allah Ditta & 3 others Vs. The State (2008 YLR 681), Shahid Durani Vs. The State (1197 MLD 1901), Adnan Nabi Vs. The State (2002 P Cr. L J 81), Master Dur Muhammad and 2 others Vs. The State (1994 P Cr. L J 1769), Kaleem Ahmed @ Hakeem Ahmed Vs. The State (1994 P Cr. L J 1771).
5. Mr. Shahid Ahmed Shaikh Assistant Prosecutor General Sindh for the State has opposed the bail application on the ground that the names of the applicants appear in the F.I.R with their specific role, they were armed with deadly weapons and caused fire arm injuries to the injured and no malafide has been alleged by the applicants, therefore, they do not deserve the extra ordinary concession of pre arrest bail.
6. Mr. Muhammad Azeem Panhwar learned counsel for the complainant has adopted the arguments of State Counsel.
7. Heard learned counsel for the parties and perused the record made available before me.
8. The names of the applicants transpire in the F.I.R, the specific role for causing fire arm injuries to the P.Ws is attributed to each of the applicants, they were armed with deadly weapons like guns and K.Ks. The medical evidence corroborates the ocular version. P.W Ghulam Qadir has received fire arm injury below his right eye, whereas P.W Anwar and Abdul Sattar have received the injuries at their respective bellies besides Muhammad Ayoob, who received the injury at his muscle. So far delay in lodging the FIR is concerned, same is properly explained by the complainant as after first aid injured P.Ws Ghulam Qadir, Abdul Sattar and Anwar were referred by the Doctor to Hyderabad for further treatment. The F.I.R. was registered on the directions of Additional Sessions Judge, Dadu, which reflects that the police had refused to register the same therefore, delay in lodging the F.I.R in above circumstances is not helpful to the applicants at this stage.
9. With the profound respect, the law relied upon by the learned counsel for the applicants is not applicable to the case in hand as the facts of Abdul Sattar Narejo’s case (supra) is on different footings. In said case, apart from previous enmity and political rivalry as well as contradiction between oral and medical evidence as opined by the Medical Officer, therefore, the applicant was admitted on bail but in the present case, the medical evidence fully corroborates the ocular version and no political rivalry has been alleged.
10. In the case of Raja (supra) there were general allegations against in all 22 persons and in F.I.R the complainant did not disclose any specific role against any of the accused and a murder case was registered against the complainant party by the accused. Whereas in instant case specific role is attributed to each of the applicants, hence the above case is not helpful so for the case of the applicants is concerned.
11. In Shahid Durani’s case (supra) the medical evidence was in conflict with ocular version and the injured had also not appeared before the Medical Board comprising of four Doctors which was constituted for her re examination, therefore, under such circumstances, pre arrest bail was granted to the applicant. Whereas in the case in hand, all the injured were appeared before the Medical Board constituted for their re-examination and the Medical Board also corroborated the version of prosecution.
12. In the case of Adnan Nabi, the allegation against the accused was merely of ineffective firing, therefore, his interim bail was confirmed, but the present applicants are nominated with their specific role as they have caused fire arm injuries to the P.Ws.
13. The Honourable Supreme Court in the case of Muhammad Aslam & another Vs. The State (2007 SCMR 1412) upheld the order of High Court where accused were refused pre arrest bail on the ground that they were directly nominated in the F.I.R with active role of causing Sota blows as well as injuries by back side of hatchet to two ladies, though there was delay in lodging the F.I.R but no element of malafide appeared to exist on the face of record. Under similar circumstances in the case of Choudhry Waris Ali Vs. The State (2007 SCMR 1607) the Honourable Supreme Court was pleased to dismiss the petition for grant of pre arrest bail of the applicant on the ground that no malafide or ulterior motive on the part of complainant was pointed by accused though the accused was named in the F.I.R with role of aerial firing.
14. Since no malafide or ulterior motive on the part of complainant has been alleged by the accused and in the dictum laid down by Honourable Supreme Court and the specific role attributed to the each applicant, I do not find any merit in the Bail Application of the applicants, which is dismissed accordingly. Resultantly interim order dated 16.06.2009 stands recalled, however, the observation made in this order is tentative in nature and the trial court may decide the post arrest bail application of the applicants on its own merits as the consideration for pre arrest bail and post arrest bail are quite different.
JUDGE
A.K