ABDUL MAJEED Versus State

ORDER

1. MUHAMMAD IQBAL MAHAR, J.--- Through instant application, applicant seeks bail in crime No:157/2015 of P.S. Kashmore, registered under sections 324, 337-H(2), 148, 149, 506/2, P.P.C. Earlier his bail application has been dismissed by learned trial Court.

2. Precisely, the prosecution case is that on 9.9.2015 complainant Ghulam Mustafa, his uncle Ahmed and cousin Denglo were returning back to home on their Motor Cycle from Kashmore town and when at about 07.00 pm reached near Dakhan School, saw six accused on two Motor Cycles who stopped their Motor Cycles in front of the complainant party. The complainant party identified five of them to be Muhammad Ismail, Abdul Majeed, Muhammad Ali, Hakim Ali and Ghulam Shabir while one was unknown, all were armed with T.T pistols. The accused persons challenged the complainant party that they would kill Ahmed. Saying so accused Muhammad Ismail, Abdul Majeed (applicant/accused) and Muhammad Ali fired at Ahmed which hit him and he fell down. Accused Hakim Ali fired at PW Denglo which also hit him. The complainant entreated the accused persons in the name of Holy Quran. Thereafter accused persons went away and complainant took the injured PWs to PS, got letter for treatment and shifted them to Taluka Hospital Kashmore but the Medical Officer referred them to Rahimyar Khan for further treatment and there after the complainant went to PS where he lodged the FIR.

3. Learned counsel for the applicant/accused contended that the applicant is innocent; injury attributed to him is on non-vital part of the body and is punishable with imprisonment for five years, which does not come within prohibitory clause of section 497, Cr.P.C. He further contended that there is delay in lodging the FIR; that the applicant accused was found innocent during investigation and that he is behind the bars since last one year therefore, according to him the case against the applicant requires further inquiry. In support of his contention he relied upon 2005 YLR 661, 2012 YLR 2566 and 1977 PCr.LJ 159.

4. Conversely, learned DDPP appearing on behalf of the State vehemently opposed the grant of bail.

5. Heard the learned counsel for applicant, learned DDPP and perused the material available on record.

6. Perusal of record reflects that the applicant/accused, his brother Muhammad Ismail and Muhammad Ali are directly charged for effective firing on injured PW Ahmed. The version of complainant is supported by injured PWs in their 161, Cr.P.C. statements. According to medical report of injured Ahmed there are six firearm injures on his person. Out of which three are entry wounds. Injury No. 3 is on buttock which is through and through and is attributed to applicant/accused. As per opinion of Medical Officer said injury is declared as Jurh Jaifah (337-D), P.P.C. punishable with imprisonment for ten years hence falls within prohibitory clause of section 497, Cr.P.C. So far as delay in lodging the FIR is concerned, prima facie, the same is explained by the complainant in the FIR that firstly he shifted the injured to Taluka Hospital Kashmore and then to Rahimyar Khan Hospital in order to save their lives and thereafter lodged the FIR. Adverting to the contention of learned counsel that the name of applicant finds place in column No. II of the charge sheet, it is enough to say that ipse dixit of the police is not binding upon the Court(s) while deciding bail application(s), hence on this analogy, I am of the considered view that such version available in prosecution case is worthless. So far the last contention of learned counsel that the applicant is behind the bars since last one year is concerned it is not correct as the record reflects that the applicant was taken into custody on 4.11.2015, thus he has not completed one year in custody. Perusal of impugned order reveals that bail application of co-accused Muhammad Ismail, whose role is identical to that of applicant, has already been dismissed by learned trial Court vide order dated 16.10.2015.

7. Keeping in view the above discussion, this bail application being devoid of merits is hereby dismissed.

8. The case law relied upon by learned counsel for the applicant is not helpful for him as the facts and circumstances of the same are distinguishable from the facts and circumstances of the instant case.

9. Needless, to mention that observation made hereinabove are tentative in nature, thus will not prejudice the case of either party in trial.

10. JK/A-104/Sindh Bail refused.