ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No.  S-  459 of 2012.

Date of hearing

Order with signature of Judge

21.01.2013.

1. For orders on M.A. No. 2400/2012.

2. For hearing.

Mr. Abdul Rasool Abbasi, Advocate for applicant.

Mr. Abdul Rasheed Soomro, State Counsel.

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Muhammad Shafi Siddiqui J:         This bail application has been moved by the applicant pursuant to F.I.R under Crime No.33/2012, of P.S Kakar, District Dadu, under Sections 324, 504, 34 P.P.C.

2.       Brief facts of the prosecution case are that on the fateful day complainant, his brother Riaz and their cousin Muhammad Ramzan were returning from Khanpur town to their houses, as such at about 12.50 hours when they reached in common street in-front of Post Office Khanpur, there arrived accused Saddam Hussain having gun in his hand, Saeed Ahmed, Mohammad Parial armed with pistols, Ali Asghar alias Zahid having “Danda”, out of them, accused Muhammad Parial caused pistol butt, accused Saeed Ahmed caused iron bar and accused Ali Asghar alias Zahid caused “Danda” blows to brother of complainant Riaz Junejo, while accused Saddam Hussain fired straight gunshot at Riaz Junejo, which hit him. The accused persons then ran away. The motive behind this incident as set out in the F.I.R is issue of altercation took place between accused Saddam Hussain and injured Riaz over playing cricket game. 

3.       It is contended by the learned counsel for the applicant that there is delay in lodging the F.I.R, as the incident took place on 01.8.2012, and F.I.R was registered on 02.8.2012, and thus there is delay of 24 hours, whereas distance between place of incident and police station is about 4 to 5 kilometres. It is further contended that there is enmity between the parties and as such the applicant is nominated in the F.I.R. Learned counsel submits that in the final medico legal certificate the injury has been declared as  Ghayr Jaifah Munaqilah, falling under Section 337-F (vi) P.P.C, and as such it does not fall within propitiatory clause of Section 497 Cr.P.C and the applicant is liable to be bailed out as a matter of right. In support of his contentions the learned counsel has relied upon case of Umar Hassan v. The State reported in 2009 Y L R 588, Muhammad Ilyas v. The State reported in 2010 P.Cr.L.J 379, and he has also relied upon case of Tariq Bashir v. The State (PLD 1995 SC 35), which describes the two categories of offence, which is dealt with by Section 497 Cr.P.C. At first non-bailable offence punishable with death, or imprisonment for life of imprisonment for ten years and the secondly non-bailable offences punishable with imprisonment with less then ten years. Learned counsel submits that since the offence falls in the second category, the grant of bail is rule and refusal is an exception.

4.       Leaned State Counsel on the other hand supported the order dated 18.9.2012, in terms whereof the bail application of the applicant was rejected by the trial Court, and submitted that delay in lodging the F.I.R has been sufficiently explained and that applicant has been nominated with specific role and motive in the F.I.R. Learned State Counsel further submitted that since incident took place in daytime, therefore, the identity of the applicant is not in doubt.

5.       I have heard the learned counsel and perused the record. It appears that the enmity that has been shown in the F.I.R is on account of playing cricket, as stated in the F.I.R. It is alleged that accused Saddam Hussain on the issue of altercation over playing cricket gave and in furtherance of common intention accused Muhammad Parial caused pistol, accused Saeed Ahmed caused iron bar and accused Ali Asghar alias Zahid caused “Danda” blows to brother of the complainant Riaz and accused Saddam Hussain fired from gun straight upon brother of the complainant Riaz with intention to commit his murder, such injury as reported in the F.I.R has been explained in the final medico legal certificate in terms whereof the investigation result shows that metallic gun shot opautics on both sides of chests, and on the left shoulder joint arms, such injury has been declared as Ghayr Jaifah Munaqilah and is of firearm weapon. Apparently this offence falls under section 337-F (vi) P.P.C, punishable upto seven years. Thus the case of the complainant as raised in the F.I.R has been supported by the medical report, which prima facie proved that the applicant is prima facie involved in the offence that has been referred to in the F.I.R. In view of such prima facie medical report I have no hesitation to dismiss the bail application and the order dated 18.9.2012, explains the reasons for dismissing the bail application.  However, since it is alleged that applicant is behind bars since last six months, I therefore, direct trial Court to conclude the trial preferably within period of three moths, failing whereof the applicant is at liberty to move fresh bail application before the trial Court.

Judge