2009 PLP 1171 (YLR)

GHULAM RABBANI, J.--Applicants are facing trial in Sessions Case No.43 of 2005 arising out of Crime No.22 of 2005 registered with Police Station Shaheed Fazil Rahoo under section 324, P.P.C. read with sections 147, 148, 149 and 114, P.P.C.

2. Prosecution case, as per F.I.R. in nutshell, is that complainant Muneer Hussain Shah and other P.Ws. namely Muhammad Ali Shah, Ghulam Mustafa Shah, Shaukat Ali Shah, Ashiq Ali Shah and Muhammad Hassan were busy in the talks in their Otaq on 13-3-2005 at about 0015 hours when they on being attracted by the horn and headlights of vehicle, reached at Kairthari Minor, on link road between Khor Wah and Bachal (sic) and found one car, two motorcycles and applicants Muhammad Saleh armed with pistol, Muhammad Ali and Abdul Qadir with guns, co-accused Muhammad Ismail, Abdul Ghani and Ali Hassan empty handed present there, it is alleged that on instigation of co-accused Muhammad Ismail, the above named armed persons opened fire on complainant party and caused fire-arm injuries to P.Ws. Shaukat Ali Shah, Ghulam Mustafa Shah, Muhammad Ali Shah, Ashiq Ali Shah and Muhammad Hassan Nawa and left the place of incident on imploring of P.Ws. Muhammad Qasim Mallah and Ali Muhammad Mallah who had arrived there on fire reports.

3. Contentions of Mr. Aijaz Shaikh, learned counsel for applicants are that there is recorded enmity between the parties; there are general allegations of firing against the applicants; the injuries allegedly received by P.Ws. have been declared to fall within ambit of offences not punishable for more than five years; the F.I.R. was lodged by complainant with a delay of about 15 hours and 15 minutes after consultation, as admitted in the F.I.R. and that applicants had no intention to cause death of P.Ws. as is evident from circumstances of case. Mr. Aijaz Shaikh placed reliance on case-law, (1) Aziz-ur-Rehman v. The State (1986 PCr.LJ 2716), (2) Malik Kashif Zaheer alias Chand v. The State (1994 PCr.LJ 1776), (3) Jan Muhammad v. Haji Noor Jamal and another (1998 SCMR 500) and Muhammad Haroon alias Haroon Rehman v. The State (2004 SCMR 89).

4. On the other hand, Mr. Mashooq Ali Sammo, learned Asst. A.G. has opposed this bail application on the ground that the names of applicants appear in F.I.R; one of the P.Ws. has received grievous injury falling under section 337-F(v), P.P.C. and that the enmity is just like a razor cutting both sides.

5. Mr. Muhammad Ishaque Khoso, learned counsel for complainant has chosen to remain absent despite notice issued to him, well in advance.

6. I have given due attention to arguments of both the learned counsel and with their assistance I have examined the material made available before me.

7. Admitted facts are that crime was registered with a delay of about 15 hours and 15 minutes on the report of complainant who is admitted that before lodgment of the F.I.R. he had, consultations with his relatives; enmity between the parties is evident from F.I.R, non-cognizable report (Entry No.13 dated 12-3-2005), registered on complaint of one Muhammad Qasim, father of co-accused Muhammad Ali and from the direct complaint filed by same complainant against Muneer Hussain Shah (complainant in the instant case) and nine others vide attested copy of the said report and certified true copy of direct complaint, respectively and that all the injuries allegedly caused to P.Ws. except those to P.W. Hussain, have been declared to fall within ambit of offences not punishable for more than one year while the injury received by P.W. Hussain has been declared to fall within section 337-F(v), P.P.C. which is punishable for not more than five years hence, the prohibitory clause of section 497, Cr.P.C. is not attracted. Tentatively stated, if the applicants who were armed with deadly weapons had the intention to cause death of any of the P.Ws, they could have easily done so, more particularly, when the other side and the two P.Ws., who allegedly arrived at the time of ircident were all with bare hands. In the circumstances, I am of the firm opinion that the case against the applicants is a matter of further inquiry. Accordingly, I admit the applicants to bail subject to their furnishing surety in the sum of Rs.100000 (Rupees One Lac) each and P. R. Bond in the like amount to the satisfaction of learned trial Court. N.H.Q./M-185/K Bail allowed.