HUZOOR BUX Versus State

ORDER

ABDUL RASOOL MEMON, J.--- This order shall finally dispose of an application under section 498, Cr.P.C. filed by applicants Hazoor Bux and Nek Muhammad in Case Crime No. 59/2015 of Police Station Rustam under sections 337-F(v), 337-H(2), 147, 148, 109, P.P.C. They were granted interim pre-arrest bail by this Court vide order dated 12.10.2015 and now are requesting for its confirmation. Earlier their bail plea was declined vide order dated 02.10.2015 passed by learned Additional Sessions Judge-I, Shikarpur.

2. As per FIR allegations are that on 04.7.2015 complainant Mst. Miteri, her nephew Farooq, Mst. Nizaran and Mst. Ferozan were present in their lands when at about 7.30 a.m. accused Manzoor Ahmed, Hazoor Bux, Abdul Wahab, Muhammad Saleh with K.Ks Shaman Ali, Din Muhammad, Mashook Ali with rifles while accused Rahbar, Abdul Karim and Nek Muhammad, Muhammad Umar, Abdul Rehman and Sanwlo with T.T Pistols came there and restrained the complainant party from irrigating their lands. Accused Manzoor and Hazoor Bux caught hold Farooq Ahmed while accused Nek Muhammad inflicted him lathi blows on his right leg which caused fracture to him. In the first instance complainant obtained letter for treatment of injured and after treatment and issuance of medical certificate complainant went to lodge FIR on 17.8.2015. The injury sustained by injury PW Farooq was declared as Hashima falling under section 337-F(v). The motive of the incident was disclosed to be old murderous enmity.

3. Learned counsel for the applicants has contended that applicant Nek Muhammad had lodged FIR of Murder case No.09/2014 under section 302, P.P.C. at Police Station Daim Malik against Mumtaz Jagirani, cousin of the complainant and others, due to that enmity applicants/accused have been implicated falsely; there is delay of about one and half months in lodging the FIR; that the applicants/accused are not nominated in the NC report and their subsequent nomination in FIR shows mala fides on the part of complainant as such their case requires further enquiry; that the offences applied in the case are bailable except section 337-F(v), P.P.C. which is punishable for five years and does not fall within prohibitory clause of section 497, Cr.P.C., therefore, present applicants/accused are entitled to bail. In support of his contentions he has placed reliance on the case of Mehmood Akhtar v. Nazir Ahmad (1995 SCMR 310) and Nooruddin v. State (2005 MLD 1267).

4. Learned DPG duly assisted by complainant has opposed the confirmation of bail on the ground that applicant Nek Muhammad has been assigned active role of causing lathi blow to injured Farooq Ahmed which is supported by medical evidence while applicant Hazoor Bux is alleged to have facilitated the co-accused in the commission of offence, therefore, they are not entitled to the concession of bail.

5. I have considered the arguments advanced at bar and gone through case papers. It is an admitted fact on record that both parties are already on inimical terms and applicant Nek Muhammad had already registered murder case viz. FIR No. 9/2014 at Police Station Daim Malik. The alleged incident is said to have been taken place at 7.30 a.m. near village Lal Muhammad Jagirani but no independent witness has been cited in the case. There is delay of about 40 days in lodging the FIR. Case papers further reveal that before FIR on 04.7.2014 N.C report was lodged by complainant vide Roznamcha entry No.9 wherein neither details of alleged incident were disclosed nor names of accused were given therein though accused were allegedly known to the complainant and her witnesses, as such, there was no reason of non-mentioning names of accused in N.C report or to lodge FIR with such long delay, it indicates that FIR lodged with due deliberation and consultation which creates doubt. It is well settled that benefit of doubt can be extended at bail stage. Reliance is placed on PLD 1998 SC 97.

6. Looking to the admitted enmity, time and place of alleged incident, inordinate and unexplained delay in lodging the FIR so also non‑mentioning names of applicants in first N.C report, the case of the applicants requires further enquiry. In the circumstances, they have made out a prima facie case for confirmation of bail. Consequently, ad interim pre-arrest bail already granted to the applicants is hereby confirmed on same terms and conditions.

7. Criminal Bail Application stands disposed of in the above terms.

SL/H-25/Sindh Bail allowed.