2017 PLP 46 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned pre-arrest bail application, applicant Barkat Mari has impugned order dated 29.09.2015, passed by the Court of learned Additional Sessions Judge, Gambat, whereby his earlier bail application was declined.

2. Relevant facts spelt out from instant application are that complainant lodged instant FIR stating that parties are disputed over landed property. On 28.11.2014, at about 3.00 p.m. accused persons namely Barkat armed with TT pistol, Suhno, Muhammad Murad and Zahid, Dhani Bux with guns and Khan Muhammad with lathi intercepted complainant party and on instigation of accused Khan Muhammad, accused Barkat made pistol fire shot and complainant sustained bullet injury on his left side of jaw, while accused Suhno caused gun fire and Allah Dino sustained pellet injury on his back side.

3. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated in the instant case by the complainant as parties are disputed over landed property and matrimonial affairs, as they are residing in same village and belonging to same caste; that alleged incident occurred on 28.11.2014, but complainant lodged the FIR with the delay of 8 months; that applicant allegedly caused one injury to the complainant but did not repeat pistol fire; that applicant is behind the bars for about 11 months but prosecution has failed to examine a single witness against the applicant; that place of incident is a thickly populated area and no independent person has been cited as witness and all the PWs are close relatives of complainant; that all co-accused have been granted bail by the learned trial Court. Learned counsel relied on the case of Aziz and 2 others v. The State (2007 PCr.LJ 299) and Muhammad Rafique and another v. The State (2015 YLR 896).

4. Learned APG has produced criminal record of the applicant, which is taken on record, and he further submitted that applicant remained involved in 35 criminal cases, but was not convicted in any case. However, considering the period of detention of applicant, he extended no objection for grant of bail.

5. Heard arguments advanced by learned counsel for applicant, learned APG and perused the material available on record carefully, which emanates that alleged incident was occurred on 28.11.2014, and complainant obtained letter for medical treatment from police station but he did not lodge FIR instantly against accused persons and registered the same on 16.07.2015 with the delay of 8 months for which no plausible explanation was furnished. The stance for the delay taken by the complainant is not convincing the prudent mind that after the incident accused persons approached him for private faisla and they kept him on hopes and ultimately refused to resolve their dispute through faisla on 25.06.2015, but even then he registered FIR with the delay of 21 days. Moreover, the place of incident is situated in a thickly populated area but no independent person from the vicinity was associated as witness of the incident which also necessitates serious consideration to thresh out the truth.

6. The averments of FIR reflect that parties are belonging to same caste of Mari and residing in same village and their animosity is going on over the purchase of one Jareb land. Allegedly, applicant made one pistol fire upon the complainant but he did not repeat the same though complainant was empty handed and entirely at the mercy of accused. Per medical report the injury caused to the complainant falls within the definition Shajjah-i-Hashimah as provided in section 337-F(v), P.P.C. which is punishable for five years and in such nature cases bail is granted as a rule. Reliance is placed on the case of Tariq Bashir v. The State (PLD 1995 SC 34). The allegations for attempt to commit murder in absence of repetition of subsequent attempt by the accused require further probe which can only be crystallized by the learned trial Court by recording the evidence of PWs. In the case of Umer Hayat v. The State (2008 SCMR 1621), the honourable Supreme Court has observed that accused had allegedly fired 4/5 shots from his pistol on complainant; out of them one fire hit on his left knee. Said injury fell within the ambit of section 337-F(v), P.P.C. Accused had rightly been granted bail by Trial Court and High Court while cancelling the same had failed to observe whether bail granting order was arbitrary, capricious or fanciful. Petition for leave to appeal was converted into appeal and accused was granted bail in circumstances. In the case of Jan Muhammad v. Haji Noor Jamal and another (1998 SCMR 500), the honourable Supreme Court has observed that case against accused in the light of the provisions contained in section 334, P.P.C. read with section 337, P.P.C. did not fall within the prohibitory clause of section 497(1), Cr.P.C. Petition for leave to appeal was converted into appeal and accused was released on bail accordingly.

7. After completion of investigation, Challan has been submitted and applicant is no more required for investigation, thus his further detention will not serve any useful purpose. Moreover, applicant is behind the bars for a period of more than 08 months but prosecution has failed to examine a single witness to prove the allegations against him, which reflects that complainant is not interested to proceed with the case and he wants to keep the applicant behind the bars only, while rest of accused have been enlarged on bail by the learned trial Court including accused Suhno who made gunshot and PW Allah Dino sustained pellet injury on his back.

8. Considering the facts and circumstances referred supra, applicant has succeeded to make out a case for grant of bail on the score of further enquiry as contemplated under section 497(2), Cr.P.C. However, considering the criminal record of applicant, he is enlarged on bail subject to his furnishing two solvent sureties in the sum of Rs.100,000/- each and P.R Bond in the like amount to the satisfaction of learned trial Court.

9. The observations made supra are tentative in nature and shall not influence upon the merits of the case and learned trial Court shall decide the case purely on its merits. SL/B-10/Sindh Bail allowed.