2001 P Cr (PLP)

The present applicant is booked in Crime No. 18 of 1998 of Police Station Garaho Town Taluka Ghora Bari District Thatta for offence under sections 324, 147, 148, 149, 504,. 114, 337‑A(ii) and 337‑F, P.P.C. According to the prosecution case the complainant and the accused party had dispute over the octroi contract. It is said that on the day of incident viz. 8‑8‑1998 the complainant alongwith witnesses were sitting on a confectionary shop when at about 9‑00 p.m. the present applicant alongwith four others named in the F.I.R. came at the shop and asked the injured Muhammad Jawed as to why he and his companion had taken the octroi contract and then at the instigation of Khalifo Allahdino the present applicant having iron rod gave the iron rod blow on the head of injured Jawed which hit him on the forehead and then the accused party went away. The injured waited for his brother to whom a message was sent and on his arrival the F.I.R. was lodged at 11‑00 p.m. by his brother. Injured was referred to the Medical Officer for examination, treatment and certificate: The police after usual investigation, put the challan before the concerned Court against the present applicant only and let of all the accused named in the F.I.R. The bail application of the applicant was rejected by the, trial Court on the ground that the applicant was sent up for offence under sections 324, P.P.C. and 337, P.P.C. and the offence under section 324, P.P.C. is punishable for 10 years while the causing of injury opined as Shajah Hashimah is punishable for 7 years. The learned counsel for the applicant has argued that the applicant is innocent and has been falsely implicated in the case and according to him there was no such injury on the person of the injured Jawaid and if there was any injury that was just as scratch and not beyond that. It is further submitted that the accused, therefore, moved an application for constitution of Medical Board in order to prove the issuance of false certificate by the Medical Officer. The learned counsel has submitted that up to this time the injured has not appeared before the Medical Board in spite of the clear direction by this Court to the complainant's counsel. The learned counsel for the applicant has further urged that no offence under section 324, P.P.C. is made out as it is not a case of Qatl‑i -Amd as the applicant is alleged only a single blow and no repetition, it is therefore, yet to be determined that whether the alleged injury was caused with intention to commit murder or not and when no further attempt is made to cause more injury then what inference can be taken. The injury received by the injured is shown as open lacerated wound on left frontal skull 3.8 c.m. x 1.5 c.m. bone expose hair line seen. The learned counsel insists that under the circumstances when the present applicant has filed application for constitution of Board and the Board was constituted but the injured has failed to appear before the Board then it cannot be definitely said that the injury be deemed as Shajjah Hashimah: The learned counsel has further argued that when five persons were nominated in., the F.I. R. and four are let off it clearly shows the mala fide intention on the part of the complainant party. He has further submitted that there is admittedly delay of two hours in, lodging the F.I.R. The injured could easily and ordinarily approach the police station which is situated at the distance of about 100 paces from the scene of offence. He has further argued that the applicant has remained in custody since 8‑8‑1998. Mr. M. Ismail Memon, Advocate appearing for the State has conceded to the grant of bail to the applicant on the ground that no offence under section 324 has been made out and furthermore it is yet to be determined that whether .the certificate issued by the Medical Officer showing the injury to be as Shajjah Hashimah is correct 'or not it also,' requires further enquiry. Mr. Mehmood A. Qureshi, Advocate for the complainant has submitted that the order passed by the trial Court is proper as the name of applicant appears in the F.I.R. and direct role of causing the injury is attributed to the present applicant and motive for the commission of offence is specifically attributed and has further submitted that he has informed, the injured to appear before the Medical Board but he cannot make any specific statement to the effect that whether injured appeared before the Medical Board or not. He further submits that the accused attacked when the injured was sitting at his own place. I have considered the arguments of the learned counsel appearing for the parties and I am of the view that the applicant has succeeded to make out case of further enquiry for the reasons that prima facie it is yet to, be determined that whether the offence fall under section 324,' P.P.C. when admittedly there is no allegation of repetition of the blow by the applicant or to say that the applicant attempted to repeat the blow. Furthermore, the certificate which has been issued by Medical Officer is disputed by the accused person at the very initial stage and under these circumstances it can also not be said that whether the injury opined as Shajjah Hashimah is so or not anti the maximum punishment provided for the offence of causing injury opined as Shajjah Hashimah is 7 years which does also not fall within the prohibitory clause of section 497, Cr.P.C. There is delay of two hours in lodging the F.I.R. which apparently could not be said as fatal for the prosecution but in the present case it appears to be fatal to the prosecution as 8 the distance between the place of incident and the police station is hardly 100 steps and particularly when the injured was bleeding then ordinarily every prudent man would rush to the police station. As I have already stated, above that it is yet to be determined that whether offence would fall under section 324, P.P.C. or not and the nature of injury is yet to be decided then under these circumstances and in view of no objection by the State Counsel the applicant has succeeded to make out a case for bail and he is accordingly granted bail in the sum of Rs.2,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court. The assessment of evidence made if any would be taken as tentative in nature and will not affect the trial. This Criminal Bail Application No.967 of 1998 stands disposed of. N.H.Q./A‑71/K Bail granted.