ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Criminal Bail Application No.S-499 of 2010

DATE         ORDER WITH SIGNATURE OF JUDGE

FOR HEARING.

14-10-2011

Mr. Bharat Kumar, Advocate for the Applicants along with Applicants.

Mr. Abdul Hafeez Daudani Balouch, Advocate for complainant along with complainant.

Mr. Syed Meeral Shah, D.P.G Sindh.

……………

Ahmed Ali M. Sheikh J:      Through this bail application, applicants seek pre-arrest bail in crime No.104/2009 of PS Tando Muhammad Khan, registered under section 324 PPC.

Facts giving rise to this application are that on 30-03-2009 at 0800 hours Applicant/accused Ali Murad, Yar Muhammad, Ameer Muhammad, Basheer Ahmed and Sattar duly armed with Rifles, Guns and hatchet came at the lands of complainant, accused Ali Murad opened fire with his Rifle with intention to commit murder of the complainant party, which hit on the right side of shoulder of PW Dilawar Mallah. Whereas other accused made aerial firing. Complainant party brought the injured at Hospital for treatment and on next date i.e. 31-03-2009, complainant appeared at PS and lodged the report.

Apart from the above, there is another version of the case as one Muhammad Moosa also lodged report under crime No.122/2009 at PS Tando Muhammad Khan stating therein that on 30-03-2009 at 0800 hours accused each Gul Mallah, Kando Mallah, Lal Bux Mallah, Rafique Mallah and Dilawar Mallah came at his land. Accused Rafique and Dilawar were armed with hatchets while rest having Rifles and Guns. Accused Gul Mallah after challenging the accused party made fire shots upon the complainant party but instead of complainant party same hit bulls while rest of the accused made aerial firing.

Mr. Bharat Kumar, learned counsel for the applicants contended that the applicants are innocent and have nothing to do with the alleged offence; parties are at daggers drawn and they have registered number of the cases against each other. He further contended that this is case of counter version as in respect of same incident another case under crime No.122/2009 was registered by one Muhammad Moosa, in which Lal Bux Mallah has been nominated as one of the accused and it is yet to be determined that which party was aggressor. He lastly contended that injured Lal Bux has received injury on non-vital part of his body and same has been declared as Ghayr-jaifah-mutalahimah, which is punishable upto three years as such does not fall within prohibitory clause of section 497 (1) Cr.P.C. and as far as the applicability of section 324 PPC is concerned, same requires further probe. In support of his contentions he has relied upon the case of Hamza Ali Hamza and others. v. The State (2000 SCMR 1219).

On the other hand, Mr. Syed Meeral Shah, Deputy Prosecutor General Sindh for the State and Mr. Abdul Hareez Daudani, learned counsel for the complainant contended that the names of the applicants/accused are appearing in the F.I.R. They were armed with deadly weapons and applicant/accused opened fire shot upon the complainant party and caused fire arm injury to Dilawar Mallah but fortunately he survived as he received fire arm injury at his shoulder.

Heard. No doubt the names of the applicants transpired in the F.I.R. Per prosecution applicant/accused Ali Murad was armed with Rifle while rest of the applicants/accused armed with Guns and hatchets. Specific role of causing fire arm injuries is attributed to the applicant Ali Murad whereas allegation against the other applicants is of aerial firing. The medical certificate reflects that the injury has been caused by fire arm, in other words it corroborates the ocular version.

So far the counter version is concerned, the F.I.R. of crime No.122/2009 reflects that it was case where none from complainant party received even an scratch. F.I.R. further reflects that the case was registered under orders of Additional Sessions Judge, Tando Muhammad Khan and the accued nominated in the said case have been acquitted. On query, learned counsel for the applicants very candidly conceded that against the judgment the complainant party has not preferred any acquittal appeal.

The upshot of the above discussion is that specific role for causing fire arm injury attributed to accused Ali Murad while rest of the accused did not cause any injury to the complainant or P.W. The medical evidence also corroborates the ocular version. Besides this the applicants were remained absconders.

So far the case of Hamaza Ali Hamza and others (supra) is concerned, with profound respect same is distinguishable and not helpful to the case of applicants as there was free-fight between the parties whereby both parties used hatchets and lathis and registered cross cases against each other. In the said scuffle both parties received injuries whereas in the case in hand none from the applicants’ side received any injury.

No doubt, it is settled principle of law and it is held by their lordships in 1996 SCMR 1845 that when there are counter cases in respect of same incident, one given by complainant, another by opposite party, the case would almost fall within the ambit of further inquiry on the ground that it is yet to be determined that which party was aggressor and which was aggressed by. However, facts of the case in hand are quite distinguishable

For the foregoing reasons, I am of the considered view that applicant Ali Murad does not deserve the concession of bail as he has failed to show that his arrest is being sought for ulterior motives and with malafide intention.

 So far as the concession of pre arrest bail is concerned, in the case of Rana Muhammad Arshad Vs. Muhammad Rafique and another (PLD 2009 SC 427) the Honourable apex court has laid down guide line in respect of grant of bail before arrest. In the above case, it is held by their lordships that the grant of bail before arrest is an extra ordinary relief to be granted only in extra ordinary situation to protect innocent persons against victimization through abuse of process of law with ulterior motives and pre arrest bail not to be used as a substitute or alternate of post arrest bail. It is further held that the person seeking bail must satisfy the court that his case falls under subsection 2 of section 497 Cr.P.C and further he has to show that his arrest was being sought for ulterior motives particularly on the part of police. In absence of above conditions, such relief cannot be granted to the applicant.

            In view of above, bail application of the applicant/accused Ali Murad is dismissed while the case of applicants/accused Ameer Muhammad Mallah, Shabbir Ahmed Mallah and Abdul Sattar is distinguishable as none of them has caused any injury to the complainant or any P.W and their participation in the alleged occurrence is to be determined by the trial Court. Consequently, their interim pre-arrest bail is confirmed on the same terms and conditions laid down in the earlier order dated 12-07-2010.

            The observations made in this order are tentative in nature and will not prejudice the case of either party.

                                                                                                            JUDGE

A.C