2017 PLP 441 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

By means of instant application, the applicant Muhammad Ramzan Magsi has challenged the order dated 17.4.2015 passed by learned Sessions Judge, Larkana, whereby his request (Cr.B.A.No.422/2015), seeking pre-arrest bail in Crime No.142 of 2014 of Police Station Hyderi for offence under sections 302, 324, 337-A(i), 148, 149, P.P.C., was declined. The crux of prosecution case, as depicted in FIR No.142/2014 Police Station Hyderi, are that the brother of complainant, namely, Nazar Muhammad had four shops at Naudero Road Larkana; out of same his brother had given two shops to his other brother namely Muhammad Ramzan. The said Muhammad Ramzan and his son Sabir Hussain sold out both shops and were saying that the remaining two shops are also theirs, upon which there had been exchange of hot words between complainant party, Muhammad Ramzan and his son Sabir Hussain. On fateful day complainant, his brother Nazar Muhammad, nephew Imdad Hussain, aged about 25 years, and cousin Aitbar Ali were standing, where accused Muhammad Ramzan and his son Sabir Hussain together with three unidentified persons came at 10.00 a.m. Accused Sabir Hussain said that remaining two shops are of theirs, therefore, he would lock the same; upon which his brother Nazar Muhammad restrained them; by saying so, all accused at-once took out pistols from fold of their Shalwars and pointed upon them. Accused Sabir Hussain made straight fire from his pistol to commit Qatl-e-Amd of his brother Nazar Muhammad, which hit him and he fell down. Accused Muhammad Ramzan (present applicant) made straight fire from his pistol upon his nephew Imdad Hussain, which hit him, who also fell down and blood started oozing. While seeing them fallen down, all accused decamped from the scene. The complainant party, being empty handed and due to fear, did not follow them. Latter, they went and noticed that Nazar Muhammad had sustained firearm injury on his chest under the nipple while his nephew Imdad Hussain sustained firearm injury at left side of his skull. In order to provide first aid, the injured were shifted to hospital, where Nazar Muhammad succumbed to injuries. Injured Imdad Hussain remained under treatment. The complainant, leaving the witnesses in the hospital, went to police station and lodged FIR that above named accused with their pre-concert had come duly armed with deadly weapons, over the matter of shops with his brother Nazar Muhammad; accused Sabir Hussain made straight fire from his pistol to him and caused his murder. Accused Muhammad Ramzan caused straight fire upon Imdad Hussain, who is severely injured. As far as unidentified person are concerned, complainant claimed that he would recognize them, if see them again. To such effect the FIR was lodged. The police after registration of the case started investigation and arrested co-accused Sabir Hussain on 28.11.2014 and after completion of legal formalities submitted the challan before the competent Court of law having jurisdiction on 13.12.2014, placing name of the applicant in the column of absconders. The applicant attempted to have concession of bail in shape of extra ordinary relief from learned trial Court, which was declined. Consequently, instant bail application was filed. Learned counsel for applicant submitted that specific role of causing injury to deceased Nazar Muhammad is assigned to co-accused Sabir Hussain, who is in custody. He further submitted that in-fact, no injury, as alleged has ever been caused to PW Imdad Hussain, but the complainant in order to strengthen rope of his false case has managed false medical certificate to exert illegal pressure upon the applicant and his family, so that they may meet with unjustified demand of the complainant party. He further submitted that dispute over the property admitted and therefore, the parties are on strange relations and in such eventuality the prime ingredients for grant of pre arrest bail as defined by Hon'ble Apex Court in numerous judgments are very much attracted. He further submitted that injured/PW Imdad Hussain was referred to Medico Legal Officer and per final medico legal certificate, the injury allegedly sustained and duly attributed to the applicant has been declared as Shajjah-e-Khafifah, which is bailable one and in bailable offence, bail becomes right of accused as is enshrined in case of Tariq Bashir and 4 others v. The State (PLD 1995 SC 34). The copy of final medical certificate is annexed with file at page 37 as Annexure-"F", which affirms the contention raised by counsel. Learned counsel further submitted that as for as injury attributed to the applicant allegedly sustained by the injured is concerned; the same is doubtful, as according to medical certificate the injured has two injuries on his person, so also as per mashirnama of inspection of injuries dated 27.11.2014, which is available with the police file reflects two injuries on the person of injured/PW Imdad Hussain; one is on his left parieto temporal region and second is below the left mandible; however such fact has not been mentioned even in provisional medico legal certificate, he therefore submits that as per FIR the applicant has been assigned one injury to PW Imdad Hussain and there is no mention in FIR regarding second injury or even in the memo of injuries. Learned counsel further submitted that as and when applicant learnt about present case, he had filed Crl. Bail Appln. No.S- 141/ 2015 before this Court, whereby he was granted protective bail by this Court vide Order dated 08.4.2015; copy whereof has been annexed as annexure-"E" at page

33. In support of his contentions the learned counsel has placed his reliance upon case of Mumtaz Hussain and 5 others v. The State (1996 SCMR 1125) and further submitted that entire evidence in the case has been recorded by the learned counsel and only two witnesses remain to be examined. On the other hand Mr. Athar Abbas Solangi, Advocate for complainant has vehemently opposed application and submitted that FIR was lodged promptly; the applicant is nominated in the same with specific role and in support of his contentions he has relied upon case of Rab Nawaz and 2 others v. The State (2015 PCr.LJ 1531), whereby bail of applicant therein was declined on the ground of vicarious liability in a case of double murder. Learned counsel also relied upon 2012 MLD 377, 2009 MLD 747 and PLD 2009 SC

427. Learned counsel further submitted that complainant had challenged the medico legal certificate issued in favour of injured Imdad Hussain and submitted the copy of findings/ report of the Special Medical Board. The findings of special medical board held on 27.5.2015 had affirmed the nature of injury to be Shajjah-e-Khafifah. Learned counsel for complainant therefore opposed the grant of bail. Learned A.P.G., while adopting the arguments of learned Advocate for complainant, supported the impugned order. Heard learned counsel for parties and have gone through the material made available before me. Mere urgency or delay alone are not sole criterion to take the FIR as gospel truth or disbelieve the same as a whole while dealing with an application for bail but criterion in cases, falling within prohibitory clause of section 497, Cr.P.C., shall remain the same as has been chalked out i.e. 'bringing the case out of subsection (i) to subsection (ii) of section 497'. Either of two can well be one of the ground to appreciate tilt but not a decisive fact to decline or earn liberty in cases, falling within prohibitory clause of section 497(i), Cr.P.C. Be as it may, admittedly, the parties are at strange relations and undisputedly the applicant / accused is not alleged to have caused any injury to deceased. The injury, attributed to the applicant/accused, has been declared by the medico legal officer as Shajjah-e-Khafifah, which is bailable carrying maximum punishment upto two years. Further, an allegation of common intention has now stood ' settled to be normally one of further enquiry unless there are other compelling reasons and circumstances to reach a different conclusion. Reference may be made to the case of Dilmurad v. State 2010 SCMR 1178 wherein honourable Apex Court held as: "6. .... In our opinion in so far as the issue of common intention is concerned, it is now well-settled that at the bail stage the same is normally one of further enquiry unless there are other compelling reasons and circumstances to reach a different conclusion i.e. by way of other pieces of evidence, which could definitely connect the applicant/ accused with the crime in question..." In the instant case, the applicant/accused was alleged to have caused a single fire arm injury on the person of injured Imdad Hussain but the record (medical evidence) speaks otherwise. The learned APG and counsel for the complainant when confronted with such conflict, they both could not controvert the position. The injury though is mentioned in mashirnama of injuries but same is not mentioned in provisional medico legal certificate. Since, prosecution attributed only one injury on person of injured Imdad Hussain but Special Medical Board held otherwise. I am conscious that normally the deep examination of material is not permissible at bail stage but a prima facie conflict shall always tilt the scale in favour of the accused because for whom the law allows to enjoy presumption of innocence. The plea of through and through injury stood repelled by the special medical board. The said findings are as under: "One irregular and mobile scar measuring 2 cm x 1.5 cm present on the left parieto-temporal region. MLO has not mentioned the injury of the small scar present below the left mandible. This scar is superficial and track of the injury is not palpable." The prima facie conflict in medical and ocular account is sufficient to bring the case of the applicant/accused within scope of 'further inquiry' particularly when prima facie none of the APG or counsel for complainant placed no reasonable justification for second injury. Even otherwise, second injury also declared as Shajjah-e-Khafifah. Since, if the question of common intention is left open to be determined by trial court then applicant / accused prima facie appears to have been charged for bailable offences and in bailable offences, bail becomes right of accused. Per contention of defence counsel that entire evidence in the case has been recorded and only two witness remain to be examined and in such situation, it would not be within spirit of safe Criminal administration of justice to put the applicant / accused behind the bars who otherwise can well have his due if after trial (examination of remaining two witnesses and examination of accused persons ) he is found so deserving by trial court. Therefore, in the circumstances and in view of case of Tariq Bashir (supra), the applicant has been able to make out a case of bail in his favour. Accordingly, for these reasons the instant application stood allowed by short order dated 16.01.2017, whereby the interim pre arrest bail already granted to the applicant was confirmed on same terms and conditions. Needless, to mention that observations made hereinabove are of tentative in nature and would not prejudice case of either party at trial. WA/M-55/Sindh Bail granted.