FATEH ALI alias BARKAT ALI vs THE STATE

ORDER

' KHADIM HUSSAIN M. SHAIKH, J.---Through this application, applicant Fateh Ali @ Barkat Ali seeks post-arrest bail in Crime No.18/2007, for offences under sections 324, 148, 149, P.P.C. Of Police Station, Nabi Shah Wagan, after his bail plea was declined by the learned Court of 1st Assistant Sessions Judge, Shikarpur vide order dated 21-10-2008.

2. On 13-7-2007 complainant Nadir Ali son of Allah Dino by caste Bhatti appeared at Police Station Nabi Shah Waggan and lodged his F.I.R. Being Crime No. 18/2007 for offences under sections 324, 148 and 149, P.P.C. The prosecution case in nutshell is that on 27-6-2007 the complainant along with his two sons namely Assadullah and Shaheen were available at their land when at about 6-00 p.m.

Fateh Ali (the present applicant),

2. Shaukat Ali,

3. Zulfiqar Ali,

4. Oshaque all sons of Muhammad Bux Bhatti armed with guns and Huzoor Bux son of Shoukat Ali armed with hatchet came there. It is alleged that present accused Fateh Ali fired his gun directly at Assadullah which hit him and he fell down, co-accused Shoukat fired his gun at Shaheen which hit him who raising cry fell down. It is alleged that on the cries raised by the complainant many villagers attracted to the scene of incident then accused ran away towards eastern side. Then complainant brought both the injured persons at Government Hospital at Madeji wherefrom one of the injured namely Assadullah was referred to C.M.C. Hospital Larkana and after 15 days of the incident, the complainant appeared at Police Station Nabi Shah Wagan and lodged his above F.I.R. On 13-7-2007.

3. After investigation, the challan was submitted under section 512, Cr.P.C. Showing all the accused as absconders. Subsequently on 5-9-2008 the applicant was arrested and he was sent up with the subsequent challan to stand his trial. Learned Court of 1st Assistant Sessions Judge, Shikarpur has declined the bail plea of the applicant and dismissed his application vide order dated 21-10-2008 hence this application.

4. Learned Advocate for the applicant has mainly contended, that there is delay of more than 15 days in lodging the F.I.R. And also delay of more than one month in recording statement under section 161, Cr.P.C. Of P.Ws. Without reasonable explanations thereof and the applicant has been falsely implicated in this case due to matrimonial dispute between the parties which is admitted in the F.I.R. That the injuries allegedly caused by the applicant to the injured Assadullah are not on his vital parts of body and they at the most constitute offence under section 337-F(iii), P.P.C., which carries punishment up to 3 years and that the applicant was arrested on 5-9-2008 and since then he is continuously in custody and the trial is nowhere in sight. He, therefore, prays for release of the applicant on bail. He has placed his reliance on the case of Ali Nawaz v. The State (1996 PCr.LJ 136).

5. Mr. Sham Lal, Medical Officer of Government Hospital Madeji, who initially examined injured Assadullah and Shaheen, on a notice, is in attendance and he states that injured Assadullah was referred to C.M.C. Hospital Larkana for report of the radiologist and injured Assadullah had left the hospital against medical advice, after remaining in the hospital only for couple of days upto 29-6- 2007. He files the Photostats of the case sheet of injured Assadullah and letter dated 28-8-2007 of the Assistant Police Surgeon C.M.C. Hospital Larkana which are taken on record.

6. Learned State counsel opposes the grant of bail to the applicant, he, however, is not in a position to controvert the contentions raised by the learned Advocate for the applicant.

7. I have carefully considered the arguments so advanced by the learned counsel for the parties and have gone also through the material placed before the Court, admittedly there is delay of more than 15 days in lodgment of the F.I.R. And more than one month in recording the statements of the prosecution witnesses under section 161, Cr.P.C. Which were recorded on 30-7-2007, without plausible explanation thereof, therefore, the possibility of lodgment of the F.I.R. After consultations and deliberations in view of the matrimonial enmity between the parties, cannot be ruled out, the applicant was arrested on 5-9-2008 and has remained in custody for more than 8 months, no recovery of alleged weapon has been effected from the applicant, therefore, the case of the applicant requires further inquiry into his guilt, falling within the ambit of section 497(2), Cr.P.C., which entitles the applicant to the concession of bail, therefore, bail is granted to the applicant Fateh Ali alias Barkat Ali in the sum of Rs.2,00,000 (Rupees Two Lacs Only) subject to his furnishing solvent surety and P.R. Bond in the like amount to the satisfaction of the learned trial Court. The Bail Application is allowed.