ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr.Bail.Appl.No.S-  332  of 2010

DATE                                     ORDER WITH SIGNATURE OF JUDGE

            1. For orders on office objection.

            2. For orders on MA 1458/10.

            3. For hearing.

Date of hearing:         12.11.2010.

Date of order:           

            Syed Tarique Ahmed Shah, Advocate for applicant.

            Syed Meeral Shah, D.P.G for the State.

            Mr. Aijaz Ahmed Shaikh, Advocate for complainant.

                                                =

            By this order, I intend to dispose of Criminal Bail Application No.S-332 of 2010, filed by applicant Kifayat Ali whereby he seeks bail in Crime No.12/2010 of P.S Hussainabad, Hyderabad registered U/s 337-A, 324, 34 PPC.

            On 5.2.2010 complainant Muhammad Noor lodged report with Police Station Hussainabad, Hyderabad which reads as follows:-

“Report is that I am residing at the above mentioned address and doing the business of Chappal and Rent “A” Car at Naya Pull. We have a matrimonial dispute with brother in law Nadir Ali of my brother Noorullah, to which Nadir Ali and others have registered a murder case over my brothers, which is pending in Court. Today, on 05.02.2010 I along with my brother Noorullah and relative Abdul Latif were going from Machi Para Hussainabad to participate in a procession (Juloos). When we reached near Ice Factory at about 1720 hours, where each one Nadir Ali, Kifayat Ali and Sarwar Ali were already available there, who meanwhile on seeing us become annoyed and caught hold us and Kifayat Ali with intention of murder caused knife (Churri) injury on neck of my brother Noorullah who fell down and blood started to ooze from the neck. I and Abdul Latif tried to save Noorullah, to which Nadir Ali caused butt blows of pistol to me and gave fists and kicks blows. They also caused knife (Churri) injury to Abdul Latif who received injuries on face and knee of leg, on our cries Mohalla people gathered there, on seeing gathering of Mohalla, above accused ran away by throwing the knife. Now producing the knife at Police Station, reporting that medical letter may be given to my brother Noorullah and relative Abdul Latif and investigation may be done.”

            It is inter alia contended that applicant is innocent and has been falsely implicated due to previous enmity; prior to this case, brother of applicant has registered a case under Crime No.191 of 2008 against the brother of complainant and others for murder of applicant’s sister and complainant has lodged another case under Crime No.33/2009 at P.S Hussainabad against Nadir Ali, the brother of present applicant; that due to previous enmity and litigation, the applicant has been fixed in this false and fabricated case; name of co-accused Nadir Ali has been placed in Column No.2 of the challan which creates doubt about the prosecution case; co-accused Nadir Ali and Sarwar have been granted anticipatory bail by IInd Additional Sessions Judge, Hyderabad and the case of present applicant is on same footings therefore, he also deserves the same concession under rule of consistency. It is lastly contended that victim himself has produced knife before the police which also creates doubt in the prosecution version. In support of his contentions, learned counsel has placed reliance on the cases reported as 1. Jan Muhammad Vs. Haji Noor Jamal and another (1998 SCMR 500), 2. Allah Rakha alias Bodi and another Vs. The State and another (1993 SCMR 1994), 3. Moulvi Nazar Muhammad Vs. The State (2000 P.Cr.L.J 1174) and 4. Muhammad Akram Vs. The State (2005 P.Cr.L.J 596).

            Conversely, Syed Meeral Shah, D.P.G for the State assisted by Mr. Aijaz Ahmed Shaikh, Advocate for complainant opposed the bail plea of the applicant on the ground that name of applicant appears in the FIR. He was armed with knife and made murderous assault upon the complainant party therefore, his bail plea is liable to be dismissed. In support of their contentions, they have relied upon the cases reported as Zia Vs. The State and another (2008 P.Cr.L.J 848) and Babar Khan and another Vs. The State and another (1999 P.Cr.L.J 1677).

            Heard learned counsel for the parties and perused the record.

            Admittedly, the name of applicant transpires in the FIR. He was said to be armed with knife and caused injuries on the neck of victim which is a very sensitive and vital part of the body. Medical evidence also corroborates the ocular version. PWs have also supported the version of the complainant. From the nature of injury, it appears that had it been caused with slightly more force, it would have cut the throat of the victim therefore, prima facie I am of the opinion that the applicant had intention to commit the murder of the injured. So far as the case of co-accused Nadir Ali and Sarwar is concerned, the case of present applicant is on different footings to that of co-accused therefore, he is not entitled to the concession of bail under the principle of consistency. The law relied upon by learned counsel for the applicant is distinguishable and not helpful to the case in hand.

            In view of above and the dicta laid down in Zia’s case and Babar Khan’ case (Supra), I am of the considered view that there is sufficient material connecting the applicant with the above offence. Resultantly, his bail application merits no consideration and same is accordingly dismissed. However, the trial Court is directed to conclude the trial expeditiously and shall not adjourn the case on any flimsy ground.     

            The observations made hereinabove are tentative in nature and shall not influence the trial Court. The trial Court shall decide the case on the basis of material available on record.  

                                                                                                            JUDGE

Tufail