2013 PLP 255 (YLR)

HABIB-UR-REHMAN SHAIKH, J.

By this common order I intend to dispose of above two bail applications arising out of same F.I.R. No.10 of 2012 registered by complainant Rattan Kumar at Police Station Umerkot under sections 324, 147, 140, 149, 331-A(i), F(i), 506(ii), 447, 114, 337-7H(1) P.P.C. The facts of the case in nutshell are that there is old Akhara (worship place) of Hindus at Umerkot where they daily used to come for worship: On 2-2-2012 the complainant and other Hindus came at Akhara for worship, where they saw applicants were putting material for construction, they restrained them and refused by saying that it is plot of Akhara and why they are occupying it, on which they extended threats for dire consequences and said to leave the place. Today on 3-2-2012 at about 1415 hours, Rano, Molchand and Jay Kumar Malhi came at Akara for worship, where they saw that every one namely Hafeez, Zulfiqar, Ramzan alias Jani, Raza and Muhammad Saeed and others were busy in construction work duly armed with deadly weapons, they refused and restrained them on which Hafeez became annoyed and instigated his companions those were duly armed with deadly weapons by saying that don't spare them, on which Ramzan alias Jani, Zulfiqar, Kashif Ali, Muhammad Saeed, Taimoor Arain, Zainul Abdin, Kashif and Raza raised their respective weapons and Zulfiqar made straight fire over Rano Mal with intention to kill him, same was landed over his left side neck, Ramzan made straight fire over Molchand same was landed over his left shoulder, Raza made straight fire over Molchand same was landed over his neck, Hafeez made straight fire from his rifle upon the complainant but he saved by lying on earth. Hafeez and others duly armed with deadly weapons forming unlawful assembly assaulted upon the complainant party and caused injuries to Molchand and Rano Mal with intention to occupy the plot of Akhara. On such information peoples of Umerkot town rushed over there, wherefrom injured were shifted to Government Hospital in serious condition wherefrom the injured were shifted to Hyderabad. After that above F.I.R. was registered. After registration of F.I.R. police arrested accused Zulfiqar, Taimoor, Zainul Abdin, Kashif Ali, Muhammad Umar Kashif and submitted challan before the concerned court by showing accused Abdul Hafeez, Saeed Akhtar, Raza Hafeez and Muhammad Ramzan on bail. Heard learned counsel for the applicants, complainant as well as A.P.-G. Learned counsel contended that according to alleged F.I.R. the incident has taken place on 3-2-2012 at about 1415 hours and F.I.R. was lodged on the same day at about 2345 hours i.e. about 9 hours delay by complainant Rattan Kumar. As per F.I.R. the accused Zulfiqar, Hafeez, Ramzan alias Jani, Raza and Muhammad Saeed and others were busy in construction work as per alleged F.I.R., the applicant Hafeez instigated his companions on which Zulfiqar made straight fire from his weapon over Ranomal which hit him over his left of neck, Ramzan made straight fire over Molchand which hit over his left shoulder, Raza made straight fire over Molchand which hit him over his neck. Hafeez made straight fire from his rifle upon complainant the same was missed. The injured were referred for medical treatment and five persons were arrested from whom a shot gun was recovered from applicant Zainul Abdin and licensed repeater from applicant Kashif Ali after two days of their arrest. He further contended that two empties of 9mm and 4 empty cartridges were secured from the place of occurrence by the I.O. He further contended that Abdul Hafeez and Muhammad Umar alias Kashif were shown in Column. No.2 of the challan during reinvestigation and there is an agreement dated 27-1-2009 in which they have taken lease the area from one Bavanundogar such copy is annexed and civil suit is pending in the court of law and the present applicants are involved by the complainant due to mala fide intention and ulterior motives due to result of enmity between the original owner of the property and the present complainant. He further contended by that on the same day of incident F.I.R. has been lodged with the direction of Sessions Judge/Ex-Officio Justice of Peace by Muhammad Hassan against present complainant and others as F.I.R. No. 13 of 2012 at same police station which resulted disposal of the said F.I.R. in "C" class by the concerned Magistrate. Such order was challenged by Muhammad Hassan which is pending before this court. The Medical Board and Special Medical Board were constituted; both opined that the provisional medical certificate were issued by the doctor as incorrect and the injuries of the injured Molchand fall within the ambit of section 337-F(v) and the injuries of injured Ranomal in section 337-F(iii) and the same does not fall within the prohibitory clause of section 497, Cr.P.C. He further contended that the complainant party is highly influential so on surrender before the Trial Court/Sessions Judge for pre-arrest bail but the applicants were not in a position to attend the trial Court and moved such application before the trial Court who passed the order in the absence of applicants which were granted interim pre-arrest bail but the same was rejected so also their pre-arrest bail was dismissed for non-prosecution so they appeared before this court for their pre-arrest bail and he further requests that the applicants are entitled for confirmation of their pre-arrest bail and the applicants who are in custody since their arrest viz. 5-2-2012 are rioting in jail. They are also entitled for grant of post-arrest bail. He relied upon the case of Wazir Ahmed v. State 2004 SCMR 1167, 2005 SCMR 1784, Amanullah v. The State (2005 MLD 415), Sher Muhammad v. State (2007 PCr.LJ 1509) and 2010 SCMR

64. On the other Syed Madad Ali Shah learned counsel for complainant argued that as per F.I.R. the accused persons were duly armed and illegally raising construction over the plot belonging to complainant party and on request of complainant they miserably beaten them and injured them with their respective weapons. The complainant has shown specifically the role against accused persons who fired upon them so also the remaining accused for sharing their common intention object with the principal accused by firing in the air. So far the police report only two accused persons namely Hafeez and Muhammad Umar alias Kashif who were shown in Column No.2 on the raising of plea of alibi before the police, the said plea was not taken by the accused persons before learned Sessions Court in their first bail application. It appears that said plea was not available with them at the time of challan and they raised the said plea before the police his after thought which cannot be considered. He further argued that no doubt both the Medical Boards opined that the doctor who issued provisional medical certificates are incorrect but they also opined that the injured Molchand is disable due to firearm injury and not in a position to walk and with stature or wheelchair he is unable to move and injured Ranomal has lost his eye sight; so according to their position section 336, P.P.C. is applicable because both injured have received injuries which comes within the ambit of Itlaf-e-salahiyat-e-Udw and its punishment is 10 years and so also section 324, P.P.C. is applicable and its punishment is also 10 years and the offence would fall within prohibitory clause of section 497, Cr.P.C. He further argued that from the contents of F.I.R. and coupled with evidence under section 161, Cr.P.C. and medical evidence which connected the present applicants in the alleged offence. He further contended that learned counsel has not submitted the order or copy of Criminal Miscellaneous Application in which they have challenged the order of learned Magistrate so also the duty of the counsel/applicants to approach again to the Trial Court because their bail plea was dismissed in non-prosecution but they directly approached this court and they wilfully and deliberately remained absent on the date on which learned Sessions Judge going to pass the order on their pre-arrest bail application. There is no mala fide upon the complainant side. He relied upon the cases reported in PLD 2009 SC 427, 2012 MLD 377, 2007 SCMR 1412, 2009 SCMR 725, 2007 SCMR 1607, 2011 SCMR 171, 2008 SCMR 678, PLD 2007 Kar. 336, 1981 SCMR 1092, 2009 MLD 995, 2010 SMCR 966 and 2012 MLD

111. Learned A.P.G. adopted the arguments of learned counsel for complainant. After hearing counsel for the parties it has come on record that Zulfiqar, Ramzan and Raza have been attributed specific role of causing injury to the injured Ranomal and Molchand on the instigation of applicant Hafeez and the remaining accused were shown to be available at the time of occurrence with their respective weapons. The memo of occurrence reveals that two empties of 9mm and 04 empty cartridges were recovered and it cannot be said that who made fires from remaining accused persons except those who have been attributed specific role so their case is distinguishable from the case of accused Zulfiqar, Ramzan and Raza so also Hafeez who instigated. So far the question of innocent and mentioning the name of two accused persons Abdul Hafeez and Muhammad Umar Kashif were shown in Column No.2 of the challan by the police and declared them as innocent by accepting their plea of alibi which was not considered by the concerned Magistrate, even though police opinion is not binding upon the court. Furthermore, the F.I.R. lodged by Muhammad Hassan through the orders of learned Sessions Judge/Ex-Officio Justice of Peace which shows that the present applicant and the complainant party have quarrelled on the same day and time and in the F.I.R. the presence of injured Molchand and Ranomal was not shown by the complainant Muhammad Hassan, which appears that complainant Muhammad Hassan has not disclosed the real facts and concealed the same of the portion of incident. The F.I.R. coupled with the statement of witnesses under section 161, Cr.P.C. and medical evidence corroborates each other and the case of the injured persons would fall within the prohibitory clause. As per case-law reported as Shaukat Ellahi v. Javed Iqbal reported in 2010 SCMR 966 which reveals that accused have been declared innocent by the police during investigation alone was not a valid ground for grant of bail; none of the grounds valid for grant of bail in a case falling under prohibitory clause of section 497, Cr.P.C. was available to accused. The accused had not raised the plea of alibi at the time of moving his bail before arrest application meaning thereby that he had no such defence at that time. Even otherwise, the accused had relied upon the evidence of large number of witnesses in support of his plea of alibi which cannot be evaluated at present stage and would be assessed at trial and the bail plea was declined by the Apex Court. In the case of Rais Wazir Ahmad v. State (2004 SCMR 1167) it is true that normally a person, against whom a case has been registered, at the first instance, may approach the original Court having jurisdiction i.e. Sessions Judge in the matter of bail before arrest because propriety so demands but it is not an absolute rule as depending upon the compelling circumstances of each case a person can approach directly to the High Court by invoking its concurrent jurisdiction. Reference can be made to Sh. Zahoor Ahmed v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Rafiq Ahmed Jilani v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr.LJ 901 and Shamrez Khan v. The State 1999 PCr.LJ

74. In the case of Muhammad Haroon v. The State 1994 SCMR 2161. The only allegations against Usman petitioner is that he raised lalkara along with co-accused Luqman and Muhammad Yaqoob while Abdul Rehman petitioner is alleged to have held Mst. Razia Bibi along with co-accused Muhammad Yaqoob. They are not alleged to have caused any injury to any of the deceased persons. We, therefore, convert their petitions into appeals and allowing the same direct that they shall be released on bail. In the case bail refusal of; accused was attributed role of direct firing at the complainant who had sustained injuries on the lower part of his body. The fact that there was no injury on the vital part of the body of the complainant would not as such bring within the purview of prohibitory clause of section 497(1), Cr.P.C. to claim bail as a rule and bail was declined. In view of the arguments and the case-law, the accused Zulfiqar, Ramzan and Raza are not entitled for grant of bail so the bail plea of accused Zulfiqar is dismissed and bail plea of Raza and Ramzan is not confirmed and the earlier interim order of both the applicants/accused is recalled, and bail plea of accused Taimoor, Zainul Abdin, Kashif Ali and Muhammad Umar Kashif son of Muhammad Hassan is accepted, they shall be released on bail upon their furnishing solvent surety in the sum of Rs.1,00,000 each and PR bond in the like amount to the satisfaction of Additional Registrar of this court and bail of applicant Abdul Hafeez and Muhammad Saeed Akhtar is hereby confirmed on the same terms and conditions. They are directed to join the trial. The order passed is tentative in nature and will not prejudice the case of prosecution at trial. MWA/A-99/K Order accordingly.