2017 PLP 363 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned pre-arrest bail applications, applicants Ali Hassan alias Bhutto, Allah Wadhayo, Mohammad Saleem and Malikuddin have impugned order dated 04.03.2015, passed by the Court of 1st Additional Sessions Judge, Sukkur, whereby earlier bail application filed by the applicants was declined.

2. Relevant facts spelt out from instant applications are that complaint Bashir Ahmed lodged FIR stating therein that his daughter Mst. Rasheeda was married with Ali Hassan alias Bhutto but due to their matrimonial disputes, she approached the learned 1st Additional Sessions Judge Sukkur and after recording her statement, she was permitted to reside with the complainant. On the same day, accused Ali Hassan alias Bhutto with Klashnikov, Mohammad Hassan with pistol, Allah Wadhayo with lathi, Saleem and Malikuddin with guns along with 9/10 unidentified accused with pistols and guns entered into complainant's house. Accused Ali Hassan caught hold Mst. Rashedan and dragged her whereupon, PW Khamiso resisted and accused Allah Wadhayo caused him lathi blows on his both arms while accused Mohammad Hassan with intention to commit his murder, made pistol fire which hit on his left arm, hence instant FIR.

3. Learned Counsel for applicants contended that applicants are innocent and have been falsely implicated by the complainant as parties are already disputed over matrimonial affairs: that accused Ali Hassan was married with Mst. Rasheedan against the consent of the complainant, hence he caused serious harassment and she filed constitution petitioner for protection before this Court which was ultimately disposed of. Learned Counsel further contended that allegedly 15 armed persons entered into the house of complainant and there was no resistance from the complainant party, hence it was not difficult to abduct Mst. Rasheedan; that no any injury was caused to the complainant and Mst. Rasheedan; that one accused made one fire shot which hit on non-vital part of the injured, hence Section 324 P.P.C. is not attracted in the circumstances; that medical certificates are converting to the averments of FIR for which recording of evidence is essential; that names of accused Mohammad Hassan and Malikuddin were placed in the column No.2 of the charge-sheet to which learned Magistrate did not agree and took cognizance by issuing NBWs against them and they have already filed criminal miscellaneous application against said order which is pending before this Court. Learned counsel has relied on the case of Adrees Ahmed and others v. Zaffar Ali and others (2010 SCMR 64), Malik Muhammad Aslam v. State and others (2014 SCMR 1349), Dhani Bux alias Dino v. State (2012 YLR 1615), Muhammad Ali and 3 others v. State (2012 PCr.LJ 806) and Abdul Khalique and another v. State (2013 YLR 1450).

4. While controverting the above submissions, learned Counsel for complainant vehemently contended that applicants have committed heinous crime and they are not entitled for bail; that accused persons duly armed with weapons entered into the house of complainant and attempted to abduct Mst. Rasheedan and they also made aerial firing which is supported by the recovery of empties of Kalashnikov and pistols from the spot; that one pallet was also recovered from the arm of injured which might be caused due to the aerial firing made by the accused persons.

5. Learned APG contended that injuries mentioned in FIR are controverting to the injuries mentioned in both the medical certificates and even allegations of abduction are not attracted in present crime as accused Ali Hassan was husband of Mst. Rasheedan and she had filed Constitution Petition mentioning Ali Hassan as her husband and sought protection regarding harassment of Shabir Ahmed and Arbab, that there was alleged attempt of abduction of Mst. Rasheedan and which is punishable under section 511, P.P.C., while offence punishable under section 324, P.P.C. is apparently not made out. Learned APG extended no objection.

6. Heard learned Counsel for parties and perused the record minutely which emanates that previously applicant Ali Hassan had contracted his love marriage with Mst. Rasheedan against the consent of complainant, and she filed Constitution Petition No.2202 of 2013, for providing protection which was ultimately disposed of by this Court. Subsequently, due to dispute over matrimonial affairs, she filed Family Suit No.28/2015 for dissolution of her marriage and her marriage was dissolved vide decree dated 26.06.2015. Perusal of averments of FIR as well as medical certificate, there are clear contradictions regarding causing of injuries to the injured Khamiso. Admittedly, one firearm injury was caused at the left arm of the injured Khamiso which is non-vital part of the body. In absence of repetition of firearm shot, the question of attempt to commit murder requires serious consideration and it is for the learned trial Court to adduce evidence of witnesses and ascertain the truth at the trial. After granting interim pre-arrest bail, applicants are regularly appearing before learned trial Court and they neither have misused the concession of bail nor frustrated the trial by adopting delaying methods where charge has been framed and now case is fixed for recording of evidence. Moreover, parties are residing in the same vicinity but after alleged incident, applicants never caused any kind of harassment to the complainant party and after grant of interim pre-arrest bail, they are regularly attending the trial Court and never misused the concession of bail, while charge has been framed and case is being adjourned for want of evidence of prosecution witnesses.

7. Considering the above facts and circumstances, interim pre-arrest bail already granted to the applicants vide orders dated 09.03.2015 and 13.08.2015 respectively, stand confirmed on the same terms and conditions. Applicants are directed to appear regularly before learned trial Court to face their trial. However, in case of misuse of concession of bail, trial Court would be at liberty to initiate legal action against applicant and their surety strictly in accordance with law.

8. The observations made supra are tentative in nature and learned trial Court strictly on merits. WA/M-176/Sindh Bail confirmed