Sumair Ali Versus State

Order

Abdul Hamid Bhurgri, J.--- The applicant having been unsuccessful in securing bail from the Trial Court in Crime No.129 of 2024, registered at PS Sakrand, for offences under Sections 324,337-H(2), 504, 147, 148,149 P.P.C, now seeks post arrest bail through the instant bail application.

2. It is alleged that on 03.04.2024, the complainant, accompanied by his brother, Muhammad Farhan, was returning from their lands to their house in morning time and when they reached near Naqur Shakh Bridge, National Highway, they saw that on three motorcycles the present applicant along with co-accused Abdul Nasir, Nadir Ali, Zeeshan, Sajid Ali, Umair, Malhar, Niaz Ali and Kamran, some of them were armed with weapons and some having sticks in their hands, appeared there. Accused Abdul Nasir and Sumair Ali made straight fires from their weapons upon Muhammad Farhan which hit him on his right and left legs and he fell down; whereas other co-accused made aerial firing. On cries of complainant party local people came at the spot and thereafter accused fied away using filthy language against complainant party. Consequently, instant FIR was lodged.

3. Learned counsel for the applicant contends that applicant is innocent and has been falsely implicated by the complainant in the alleged crime. He further contends that all the sections applied in the FIR are bailable except Section 324 PC which though does not attract in his case as applicant did not repeat the fire showing that he had no intention of murder of the injured. He next submits that injury allegedly attributed to applicant is on non-vital part of the body of injured and has been declared by the medico Legal Officer as ghayr-jaifah mutalahimah and ghayr-jaifah damiyah, providing sentences upto 03/01 years respectively, falling within the ambit of non-serious category of injuries as per the Pakistan Penal Code, 1860. He also contends that FIR is delayed for about eight hours though the place of incident and Police Station are at some distance. He lastly argued that applicant is behind the bars since his arrest and till the trial is concluded he may not be taken to a long custody, therefore, prayed for his release on bail.

4. In contra, learned APG opposes the bail plea of the applicant on the ground that applicant has been assigned specific role of causing firearm injury to brother of complainant, therefore, he does not deserve any leniency in the shape of his release on bail. She, however, admits that accused did not repeat the injury. She further submits that the punishment provided by law for Section 337-F(iii) P.P.C is three years, which does not exceed the limits of prohibitory clause of Section 497 Cr.P.C.

5. On the last date of hearing complainant was present and stated that his Counsel was unwell. Today, he once again chosen to remain absent, hence, this ball application has been heard.

6. I have heard the arguments of the learned Counsel for the applicant as well as learned APG for the State at a substantial length and have gone through the record with their assistance.

7. The record so furnished transpires that though the applicant has been charged by the complainant in the FIR for inflicting injury on the person of his brother through his repeater, however, as per Medico Legal Report, the nature of injury on his person was declared as ghayr-jaifah mutalahimah and the punishment provided for such kind of hurt under Section 337-F(iii) P.P.C is imprisonment of either description for term which may extend to 03 years, therefore, the subject offence does not fall within the prohibitory clause of Section 497 Cr.P.C. Grant of bail in such like offences is a rule and refusal thereof is an exception. In case titled as "Muhammad Tanveer v. The State and another" reported as PLD 2017 SC 733, the Honourable Supreme Court has held as under:-

"Once this Court has held in categorical terms that grant of bail in offences not falling within the prohibitory limb of section 497, Cr.P.C shall be a rule and refusal shall be an exception then, the Courts of the country should follow this principle in its letter and spirit because principle of law enunciated by this Court are constitutionally binding on all Courts throughout the country including the Special Tribunals and Special Courts."

Similarly, in case titled as "Tariq Bashir and 05 others v. The State reported as PLD 1995 SC 34, the Honourable Supreme Court has also affirmed the same rational by observing as under:-

"That grant of bail in offences punishable with imprisonment for less than ten years is a rule and refusal is an exception, which are missing in the present case."

8. Upon a plain reading of the FIR, it becomes abundantly clear that enmity exists between the parties concerning a land dispute, with ongoing litigation. The circumstances of the present case, on the face of it, indicate the possibility that the accused may have been falsely implicated. There is delay of eight hours in lodging the FIR, and the injury attributed to the bail applicant does not fall within ambit of prohibitory clause.

9. Now coming to ingredients of Section 324 P.P.C, it is clear from the record that applicant has only made single fire upon injured which hit him on his leg being non-vital part of his body making the offence as referred to above. He, however, did not repeat the fire despite having ample opportunity to do so, which shows that perhaps the applicant harboured no intention to kill the victim, hence, the applicability of Section 324 P.P.C coupled with prosecution's evidence, in particular, the medical evidence of the injured as well as complainant and the recoveries, if any, allegedly made during the course of investigation, the guilt of the applicant shall be determined by the learned Trial Court after recording of evidence pro and contra. It has been held by the Honourable Supreme Court that whenever even a slight doubt arises with respect to participation of an accused person then it would be appropriate to enlarge the said accused person on bail instead of rotting him in jail. In case titled as "Syed Amanullah Shah v. The State and another" reported as PLD 1996 SC 241, the Honourable Supreme Court has held as follows:-

"So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial".

10. Further, the challan in the subject matter has already been submitted in the Court and the Trial is ripe for its commencement, therefore, the guilt or otherwise of the applicant shall better be adjudged by the learned trial Court during the course of trial. Even otherwise, bail does not mean the acquittal of accused but only change of custody from government agencies to the surety, who on furnishing bail bonds, takes responsibility to produce the accused whenever required to be produced.

11. For what has been stated above, this bail application is allowed and applicant is admitted to post arrest bail subject to his furnishing solvent surety in the sum of Rs.200,000/- (Two Hundred Thousand) and P.R bond in the like amount to the satisfaction of the learned Trial Court.

12. It is however, categorically clarified that the observations articulated herein are tentative and shall neither prejudice nor pre-empt the merits of the case at the stage of trial.

JK/S-27/Sindh Application allowed.