2013 P Cr (PLP)

IMAM BUX BALOCH, J.

This common order shall dispose of above both captioned bail applications, as the same have arisen out of the same crime. Applicants Aman alias Amanullah and Sajjad Hussain were admitted to interim pre-arrest bail by this court vide order dated 21-3-2011, and it is fixed today for confirmation or otherwise; while applicants Nazir and Imran have filed post-arrest bail application. Precisely the facts of the prosecution case are that on 3rd January, 2011, at 2.00 a.m. the accused Iman alias Imoo Chandio, Sajjad Hussain having Kalashnikovs, Nazir Hussain having T.T pistol, Imran Magsi having rifle entered into the house of the complainant and complainant on the electricity light had identified them. It is alleged that the accused have committed theft of buffalo and while the complainant party challenged them, accused Imam Bux alias Imoo fired upon Abdul Haq, who received firearm injury on his legs. On the commotions the accused left the buffalo and fled away from the scene of offence. The complainant took his brother Abdul Haq to Taluka Hospital Kamber, from where he was referred to Larkana hospital; he got his brother treated at Larkana hospital and on 5th January, 2011, he lodged the F.I.R. as stated above. Heard Messrs Saleem Raza Jakhar, Irfan Ali Bhurgri learned counsel for the applicants, Mr. Shamasuddin Abbasi learned counsel for the complainant and Mr. Altaf Hussain Surahyo, State counsel. Mr. Irfan Ali Bhurgri, contended that the complainant with mala fide intention and ulterior motives has involved the applicants. The applicant Sajjad Hussain recently came from Saudi Arabia and in order to blackmail him and usurp amount from him he was involved by the complainant. As regards the applicant Imoo alias Amanullah, he states that according to F.I.R. injured Abdul Haq received injuries outside the house and it is impossible that the complainant had identified applicant Imoo alias Amanullah that he had fired upon his brother Abdul Haq. He states that the case of the applicants falls within the purview of further enquiry and that interim bail granted by this court to the applicants may be confirmed. He has placed reliance on 2007 PCr.LJ 513 and 1994 PCr.LJ 1769. Mr. Saleem Raza Jakhar counsel for the applicants in Criminal Bail Application No.133 of 2011, contended that no active role has been assigned against applicants Nazir and Imran. Per contents of F.I.R. the active role is assigned to accused Imo alias Amanullah. He further contended that the applicant Imran is minor, as he was born in year 1995 and is a tender age boy. He further contended that injured has received the injuries outside the house, therefore section 459, P.P.C. is not having applicability. He has placed reliance on 2011 PCr.LJ

208. On the other hand Messrs Shamasuddin Abbasi counsel for complainant and Altaf Hussain Surahyo, State counsel have contended that there is no mala fide on the part of complainant. The applicants in furtherance of their common intention have criminally trespassed in the house of the complainant and committed theft of buffalo and caused injuries to Abdul Haq, when the complainant party challenged them; they stated that all the accused are vicariously liable for the commission of offence and section 459, P.P.C. is punishable with imprisonment for life, and upto ten years. Both the learned counsel have placed their reliance on the cases reported in 2007 SCMR 1607, 2007 YLR 714 and 2003 YLR 2131. I have considered the submissions advanced at the bar and gone through the law relied upon by the learned counsel for the respective parties. Admittedly, the names of the applicants have been mentioned in the F.I.R. The complainant and P.Ws have identified the applicants/accused on the electricity light. The injured Abdul Haq has received the injuries. During course of investigation from the place of vardat ten empty shells of Kalashnikov have been recovered. In Criminal Bail Application No.162 of 2011, the accused after getting concession of interim pre-arrest bail have misused the same and extended threats of killing to complainant and in this regard nephew of the complainant has lodged F.I.R. No.9 of 2011 with P.S. Kamber, under sections 506/2, 148, 149, P.P.C. The final medical certificate of injured Abdul Haq reveals that he has received firearm injury which has been declared as Jurh Ghayr Jaifah Hashimah. The applicants have committed an offence which is punishable for imprisonment for life or to the extent of ten years, which does fall within prohibitory clause of section 497, Cr.P.C. The case-law relied upon by the learned counsel for the applicants is distinguishable from the facts of present case. Considering all the aspects of the case I am of the considered view that the applicants in Criminal Bail Application No.162 of 2011, have not made out a case for pre-arrest bail. Consequently, their bail application stands dismissed and the earlier order granting them interim pre-arrest bail is recalled. However, Criminal Bail Application No.133 of 2011, also stands dismissed for the same reasons. MWA/A-40/K Order accordingly.