MUHAMMAD ALI and another vs THE STATE

ORDER

' GHULAM SARWAR KORAI, J.--- Through this application, the applicants seek their release on bail in case Crime No,17 of 2011 registered at Police Station Kotri under sections 324, 337 H(2), 452, 504, 147,148, 149 P.P.C.

2. Brief facts of the prosecution case are that on 17-1-2011 at 1300 hours, complainant Lal Zareen lodged F.I.R. At Police Station Kotri stating therein that on 12-4-2010 Shafique Mangi and others committed robbery from his house, therefore, F.I.R. No,153 of 2010 for 'offence under section 17(3)

Offence against Property (Enforcement of Hudood) Ordinance, 1979 was registered against them such case is still pending adjudication before the Court of law, therefore, accused Shafique issued threats to the complainant that he would commit his murder. On 14-1-2011 at 0330 hours, door of the complainant's house was allegedly knocked while 'the complainant and his family members were sleeping in their house, they woke up; complainant opened the door and saw Shafique, Muhammad Ali, Ashfaque Ali all sons of Qurban Ali Mangi resident of Bhitai Colony, Kotri along with two unknown persons with open faces entered in the house of complainant. They were armed with pistols. Accused Shafique abused the complainant and asked as to why he has not withdrawn from the case, therefore, he will not be spared. ' Saying so, applicant Muhammad Ali fired from his pistol upon the complainant with intention to commit his murder, which fire hit to him on his head in angular direction and crossed scattering on his head and complainant fell down. The neighbourers came there and all the accused made their escape.

3. After registration of F.I.R. Applicants were arrested on 21-1-2011. Their bail application was filed but the same was dismissed by the learned Additional Sessions Judge Kotri vide order dated 4-3-2011 that has been impugned in the present bail application.

4. Heard Mr. Khait Kumar Khatri Advocate for the applicants and Syed Meeral Shah learned D.P.-G.

For the State and perused the case file.

5. Learned counsel for the applicants contended that the case against the applicants is false one as earlier another F.I.R. No,153 of 2010 for offence under section 17(3) Offence against Property (Enforcement of Hudood) Ordinance, 1979 was registered against the applicants and they were granted bail. He further submits that it is quite unbelievable that applicants and others armed with pistols entered in the house of the complainant at odd hours and only applicant Shafique abused the complainant and issued fire from his pistol with intention to commit his murder but he received scratch on his head. He further Submits that there is contradiction in between F.I.R., mashirnama of injuries and medical certificate as according to F.I.R., the complainant sustained one injury, according to, mashirnama of injuries, he received five injuries and according to medical certificate he sustained three injuries, therefore, case of propose further inquiry. He further submit is applicants were unaware about registration of the case and while attending the Sessions case, they were arrested on 21-1-2011. He further submits that both the applicants and co-accused were allegedly armed with pistol but nothing was done by them except applicant No,1 and allegation against him is of further inquiry. He further submits that opinion of the Doctor shows that the complainant sustained injury by hard and blunt substance. He lastly submitted that investigation has been completed, challan has been filed and applicants are no more required for further investigation, therefore, he prays that they may be released on bail.

6. This bail application has been opposed by the learned Deputy Prosecutor-General Sindh on the ground that applicants are named in the F.I.R. While they along with other accused duly armed with pistols entered in the house of complainant at odd hours and fired upon him.

7. The complainant has not alleged any role against applicant No,2 and others, who were allegedly armed with pistols, applicant No,1 allegedly fired upon the complainant which hit him on his head and his version is contradictory, as per F.I.R. He received one injury, as per mashirnama of injuries he received five injuries and as per medical certificate, he received three injuries. The injuries have been declared by the Doctor to have been caused by hard and blunt substance. In my opinion, entire case of the prosecution is of further inquiry. Challan has been filed and applicants are no more required for further investigation while they are behind the bars since their arrest viz. 21-1-2011.

It is well-settled principle of law that bail cannot be withheld as punishment. The allegations whatever may be, but are to be proved after recording the evidence of material witnesses. At this stage, under these circumstances, the applicants are entitled to be released on bail, therefore, this application was allowed vide short order dated 8-6-2011 and these are the reasons of the same.