2009 P Cr (PLP)

ANWAR ZAHEER JAMALI, C.J.

The two applicants, who are facing trial before the Court of Vth Judicial Magistrate, Karachi (West) in Criminal Case No.2360 of 2007 arising out of Crime No.224 of 2007, Police Station Korangi charging them with the allegations of commission of offence punishable under section 337-C, P.P.C., have moved this pre-arrest bail application.

2. As per the assertions recorded in F.I.R. allegations against the applicants are that on 23-10-2007, while the complainant was digging land for arranging duly approved water connection for his house, the applicants, who are brothers inter se, attacked him and applicant No.1 inflicted him a sharp side iron blow on his chest, due to which he was seriously injured. The complainant was taken to the hospital, where he was treated for ten days. As per medical certificate the injury received by the complainant is certified as Jaifah punishable upto 10 years under section 337-D, P.P.C.

3. The trial Court has rejected the pre-arrest bail application of the applicants vide its order, dated 29-8-2008 with the observation that no mala fide was available on record to justify grant of pre-arrest bail to them.

4. Learned counsel for the applicants has vehemently contended that while rejecting the pre-arrest bail application of the applicants the trial Court failed to take into consideration the medical certificate of applicant Ali Rehmat, who had sustained three injuries in the same incident and, therefore, by not taking into consideration the counter-version of the applicants the trial Court was not justified in refusing pre-arrest bail to them.

5. On the other hand, learned counsel for the complainant has referred to the medical certificate of the complainant to show that in a brutal manner the complainant, who is aged 50 years, was beaten up by the two applicants and during that process serious injury was caused to him on his chest due to which his life was endangered and he was hospitalized for ten days. He, therefore, urged that no case for grant of pre-arrest bail is made out.

6. Learned Additional Advocate-General making reference to the police papers, contended that though the injury sustained by the complainant is only one but it is on a vital part of his body due to which his life was put in danger by the applicant No.1. The punishment for the injury attributed is ten years, falling under the prohibitory clause of section 497(1), Cr.P.C., therefore, no case for grant of pre-arrest bail is made out.

7. I have given due consideration to the submissions of learned counsel and perused the case record as well as police papers which show that the only injury sustained by the complainant is attributed to applicant Ali Rehmat. Such injury, as per the medical certificate, has been certified as "Jurh Jaifah" providing punishment upto ten years. The report of this incident was made on the same day, whereupon the complainant got police letter for his treatment and thereafter F.I.R. was lodged on 3-11-2007 on the basis of medical certificate. In such circumstances, it cannot be said that the involvement of applicant No.1 is mala fide or with ulterior motive. As regards the injury suffered by applicant No.1, it may be observed that during grappling possibility of such injury to him cannot be ruled out. As regards other applicant Khan Toti the allegations against him are only to the extent of his presence at the time of incident and holding of the complainant during the scuffle. This being the position, possibility of his mala fide involvement in the commission of crime cannot be ruled out. Accordingly, this pre-arrest bail application is dismissed to the extent of applicant No.1 (Ali Rehmat), while pre-arrest bail allowed to the applicant No.2, vide order, dated 25-9-2008, is confirmed in the same terms. H.B.T./A-12/K Order accordingly.