2023 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Applicants Waseem son of Muhammad Mian Qureshi, Jibran son of Muhammad Mian Qureshi and Artaza son of Muhammad Waseem, having been involved in case FIR No.92 of 2020, registered at police station Sharifabad, Karachi, under sections 324/34, P.P.C., was refused bail by the trial Court on 20.07.2020 in Criminal Bail Application No.932 of 2020, approached this Court by filing instant pre-arrest bail application for same relief.

2. The allegations against the applicants as per FIR lodged by the complainant Muhammad Murtaza on 04.05.2020 at 11:00 p.m. alleging therein that at about 09:00 p.m. when his nephew Farhan was available in his office situated at Railway Line Garibabad, Karachi, the present applicants along with absconding accused Kashif came there and by force taken out him from his office. Applicants Artaza and Waseem grapes Farhan and applicant Jibran caused butt below of pistol on head of Farhan, whereas, absconding accused Kashif fired upon Farhan; one of the bullet got missed, but other one hit to his abdomen. Thereafter, all the accused persons ran away from the spot by making aerial firings.

3. Mr. Muhammad Asif, learned Counsel for applicants contended that the applicants are innocent and have been falsely implicated in this case; that no incident has taken place in a fashion as stated in FIR and the real facts are that the injured, complainant and their companions are the land grabbers and they encroached the government land in front of railway line and running a slaughter house there under the supervision of area police; that the local peoples were also filed their personal affidavits stating therein that no incident has been taken place as alleged in FIR. During the course of arguments, learned Counsel also reiterating the same facts and grounds, which he has mentioned in the memo of bail application, including photographs available at page No.55 to 97 of the case file, which indicates that complainant party were attacked upon the house of applicants. Lastly, he has prayed for grant of bail to the applicants.

4. Mr. Hussain Bux Baloch, the learned Additional Prosecutor General, Sindh, assisted by Mr. Aamir Nawaz Warraich, learned Counsel for the complainant, while opposing this bail application, contended that applicants are nominated in FIR with specific role as accused Jibran took out injured Farhan from his office and gave blows with butt of pistol to him on his head, while accused Waseem and Artaza caught hold the injured Farhan nephew of complainant, facilitating the absconding accused to commit his murder, whereas, absconder accused Kashif made two fire shots on Farhan, out of which, first fire shot missed while other hit to him on his abdomen; that no mala fide or ulterior motive claimed by the side of accused persons regarding false implication of accused; that no name of any eye witness was mentioned in the FIR except complainant who himself was only eye witness of the alleged incident; that the applicant/accused facilitated the absconder main accused who did firing with pistol on the abdomen of Farhan, and hence, actively participated with common intention in the incident; that injured received injuries on vital part of head and abdomen; that incident had not been denied by the applicants; that offence under section 324, P.P.C. comes in the prohibitory clause of section 497, Cr.P.C: that deeper appreciation of evidence cannot be made at bail stage and rather tentative consideration is made; as such, he prayed for dismissal of this bail application.

5. Arguments heard and record perused.

6. It is settled law that while deciding bail applications, deeper appreciation of evidence is not warranted and only bird's eye view is to be made from tentative assessment of the material available on record. It is noted that in this case in hand, the incident took place on 04.05.2020 at 09:00 p.m., whereas, the FIR of the said incident was lodged on same day at about 11:00 p.m. Apparently, there is no delay in lodging of FIR especially there is a distance of half kilometer in between the place of incident and police station. As such, the delay, if any, has also been plausibly explained in the FIR.

7. The allegations against the applicants are that on the relevant date and time, when complainant's nephew Farhan was available in his office situated at Railway Line Garibabad, Karachi, the present applicants along with absconding accused Kashif came there and they by force taken out him from his office. Applicants Artaza and Waseem grapes Farhan and applicant Jibran caused butt below of pistol on head of Farhan, whereas, absconding accused Kashif fired upon Farhan; one of the bullet got missed, but other one hit to his abdomen, thereafter, they ran away from the spot. The applicants are nominated in the FIR with specific role as alleged supra, due to which nephew of complainant Farhan received injuries on his vital part of the body. During investigation investigating officer had recorded 161, Cr.P.C. statements of the witnesses who have fully implicated the present applicants in the commission of the crime which appears to be serious in nature.

8. During the course of arguments, learned Counsel for the applicants draws the attention of this Court towards the affidavits of mohallah peoples, who stated that no incident has been taken place as stated in FIR and so also photographs available on record at pages Nos.55 to 97, which indicates that complainant party were attacked upon the house of applicants and thereafter, in connivance with the police, involved them in this false case. I am not impressed with the arguments of learned Counsel for the applicants for the reasons that material so brought on record if discussed, then it would amounts to deeper appreciation of evidence, which is not permissible under the law. It is pertinent to mention here that pre-arrest bail is an extraordinary remedy which could be extended only when mala fide on the part of complainant is apparent, but the applicants have not alleged/proved any single reason for implicating them in FIR. In absence of mala fide on the part of complainant and police, the extraordinary relief in shape of pre-arrest bail could not be extended which is decisive factor.

9. In view of the above facts and circumstances, this bail application merits no consideration, which is hereby dismissed along with listed applications, if any. Resultantly, the ad-interim pre-arrest bail granted to applicants vide order dated 28.07.2020 is hereby recalled.

10. Before parting with this order it is observed that any observations made hereinabove are tentative in nature and shall not effect the merits of the case. It is pertinent to mention here that vide order dated 15.09.2020, investigating officer of the case was directed to appear in Court along with police papers, however, he remained absent without intimation. Under the circumstances, SSP Investigation is directed to take departmental action against investigating officer of the case for non-compliance of the Court's order under intimation of this Court.

11. This bail application was dismissed in open Court on 14.10.2020 after hearing the parties Counsel and these are the detailed reasons thereof. Office is directed to immediately send copy of this order to trial Court for information. SA/W-17/Sindh Pre-arrest bail declined.