Nishan Ali Versus State
Muhammad Saleem Jessar, J.--- Through instant application, the applicant/accused Nishan Ali Vighio claims his admission to pre-arrest bail in Crime No.47/2024 registered with Police Station, Lakha Road for offences punishable under Sections 452, 324, 365, 511, 337F(iii), 147, 148.
The applicant filed bail application No.2123 of 2024 before the Court of Sessions Judge where after due notice and hearing the parties the request made by applicant was declined while bail of co-accused Danish Ali, Sharif and Sakhawat was allowed in terms of his order dated 25.09.2024.
2. Since, the case has been challaned which is now pending for trial before the Court of Additional Sessions Judge, Kandiaro vide Sessions Case No.823 of 2024 Re-The State v. Nishan and others. Hence, instant application has been maintained.
3. Per prosecution case applicant allegedly caused fire arm injury to brother of complainant namely Riaz Ali whereas co-accused Danish Ali, Sharif and Sakhawat have caught hold to the injured Riaz Ali. Hence, instant FIR was lodged.
4. Learned counsel for applicant submits the complainant is the Bhabi (wife of his brother) of applicant and there is murderous enmity between them since, 2016. He submits that brother of applicant namely, Muhammad Akram was husband of the complainant who was murdered at the hands of accused Dur Muhammad alias Zanwar, Bakhshoo, Gulshan Ali, Rano and Sajid all by caste Vighio in which case applicant being complainant, got registered FIR No.02 of 2016 with Police Station, Lakha road for offence punishable to Sections 302,114,34 P.P.C. The accused of said murder case are the brothers and in-laws of the complainant. After submission of challan said case was tried by the Court of Ist Additional Sessions Judge/MCTC, Naushehro Feroze vide Sessions Case No.203 of 2016 Re-The State v. Dur Muhammad alias Zanwar and others. The trial Court after recording evidence and hearing the parties found them guilty of the charges therefore, has convicted and sentenced to them for transportation of the life in terms of Judgment dated 09.09.2023. The convicts had assailed said judgment before this Court by filing Crl. Appeal No.S-100/2023 which is still pending adjudication therefore, in order to exert illegal pressure upon the applicant, so that he may not pursue the case of his brother instant case has been cooked-up. In support of his contentions he has annexed a copy of said judgment as annexure-D page-29 of Court file. He next submits the FIR has already been delayed for more than Six months' therefore, case against applicant requires further inquiry and pray for confirmation of bail.
5. Learned Additional Prosecutor General appearing for the State submits that role of abduction was assigned to all the accused and since co-accused have been admitted to pre-arrest bail by the Court below for which the complainant has not filed any cancellation therefore, case of applicant to the extent of Section 365 P.P.C is yet to be proved by the prosecution and requires further inquiry. As far as the injury allegedly caused by applicant to injured PW Riaz is concerned, it was landed on his right leg, a non-vital part of his body and besides the MLO has declared said injury to be punishable under Section 337F(iii) P.P.C carrying maximum punishment of three years. Hence, in view of longstanding murderous enmity between the parties learned Addl.P.G, has no objection.
6. Mr. Nasir Ali Rajput, Advocate for complainant vehemently opposes the bail application on the ground that applicant has been assigned specific role of causing fire arm injury to injured PW Riaz Ali therefore, the offence with which he stands charged carries maximum punishment hence, he is not entitled for bail. He; however, could not controvert the fact that brothers and in-laws of complainant have been convicted and sentenced to by the trial Court for the charge of murder of deceased Muhammad Akram.
7. Heard, record perused. Admittedly, the incident, as is evident from the FIR had occurred on 22.02.2024 whereas report thereof was lodged on 05.09.2024 i.e. the delay of more than six months for which no plausible explanation has been furnished by the prosecution for such an inordinate delay. The delay in criminal cases has always been held by the superior Courts to be fatal for the prosecution. Reliance can be placed upon the case of Mour Khan and others v. The State (SBLR 2024 Sindh 142). As far injury alleged attributed to applicant is concerned, he allegedly fired upon injured PW Riaz Ali which landed on his right leg and seat of injury is non-vital part of his body. The injury allegedly sustained by injured PW Riaz Ali has not been declared by the Medico-Legal Officer to be detrimental to his life. In such circumstances the same is still to be adjudicated upon by the trial Court after recording evidence of the parties. Reliance can be placed upon case of Master Dur Muhammad and 2 others v. The State (1994 PCr.LJ 1769). As far as application of Section 365 read with Section 511 P.P.C is concerned, it was not specified against any of the accused and since co-accused being participants of crime have already been extended grace of pre-arrest bail by the Court below therefore, the case of applicant cannot be deviated from those who have already been bailed out. Hence, propriety of law demands the applicant should also be extended constant treatment.
Since, it is pre-arrest bail application and parties, as is evident from the pleadings, are already on strained relations due to longstanding murderous enmity which has not been denied therefore, mala fide on the part of prosecution cannot be ruled out. Hence, basic ingredients for grant of pre-arrest bail as has been enshrined by the Honourable Supreme Court of Pakistan in case of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427) are fully attracted in this case. In the circumstances and in view of discussion made herein above as well in view of dicta laid down by the Honourable Supreme Court of Pakistan in case of Khalil Ahmed Soomro and others v. The State (PLD 2017 SC 730), case against applicant requires further inquiry within meaning of subsection(2) to Section 497 Cr.P.C. Consequently, instant bail application is hereby allowed. The ad-interim pre-arrest bail already granted to the applicant vide order dated 03.10.2024 is hereby confirmed on same terms and conditions. The applicant present is directed to continue his appearance before trial Court, till final decision of the main case.
8. Needless to mention here that observation made herein above are tentative in nature and trial Court may not be influenced of the same in any manner and shall decide the case on its own merits as per evidence and the material ought to be made available before it.
9. Bail application stands disposed of in the above terms.
JK/N-13/Sindh Bail confirmed.