PLJ 2007 Cr.C. (
Present: Mrs. Qaisar Iqbal, J.
AJAMAEEN KHAN and 8 others--Applicants
versus
STATE--Respondent
Crl. Bail A. No. 35 of 2006, decided on 3.2.2006.
(i) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 498 & 154--Pre-arrest bail, grant of--Prayer for--Murderous assault--Cross version--Suppression of facts--There was counter version and suppression of facts on the part of the complainant, while the FIR was set into motion for inaction against which compelled the applicants to resort to the Court of law for redress thereupon a counter case against the complainant party was registered. [P. 358] A
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 498 & 154--Pre-arrest bail, confirmed of--Prayer for--Suppression of facts--Further inquiry--The case against accused required further inquiry, there were suppression of facts and FIR was registered after consultation and due deliberation by the complainant party on account of counter incident with an intent to harass and humiliate the applicants, they were entitled to pre-arrest bail--Petition allowed.
[P. 359] B
Syed Javed Haider Kazmi, Advocate for applicant.
Mr. Asghar Khan Bangash, Advocate for Complainant.
Date of hearing : 3.2.2006.
Order
This is an application under Section 498 Cr.P.C. moved by
the applicants named above connected in commission of the Crime No. 408/2005,
registered at Police Station North Nazimabad Karachi (Central), on the report
of the complainant Muhammad Zada s/o Faiz Muhammad for commission of a
murderous assault upon him and his companions on 9.11.2005, at 8:00 a.m. The
incident had occurred in consequence of incident, which earlier occurred
between Shafiq and complainant's nephew Muhammad Ali, resulted in exchange of
hot words between them. The complainant in the same evening went to the elders
of the Shafiq, tried to resolve the dispute between the children, but of no
avail. Following the incident complainant has resorted to file report against
the applicants, five unidentified culprits and one absconder alleging, that
they had attacked with Dandaz, daggers, caused serious injuries to complainant
and his sons Muhammad Hanif, Muhammad Ali, Abrar and Mst. Husna. The victims
were shifted to
Learned counsel appearing for the applicants has contended that the applicants were connected in the commission of the offence by the complainant, who had suppressed the facts about the actual incident did not attribute specific injury to any one of the accused, the allegations are general in nature. It is next contended that the complainant had influenced the police, therefore, the counter version of the applicants were not registered by the police, an application under Section 22 (A) Cr.P.C. was filed before District & Sessions Judge Central, Karachi Bearing No. 347/2005, consequent there upon, on the order passed by the Court, FIR No. 442/2005 was registered against the complainant party admitted on bail. The FIR was lodged against the applicants on 9.11.2005, at 8:00 a.m. while the time of the incident is recorded in F.I.R. is 14:40 hours, which suggest delay of six and half hours, connotes consultation on the part of the complainant to implicate the applicants and unidentified accused. It is next urged that on account of two versions it is yet to be determined as to which one of the party was aggressor who caused grievous injury to the victims as depicted in the FIR, safely suggests that case of the applicants require further inquiry. It is next contended that there are contradictions between the ocular account and medical report as is spelled out, the injuries to the victim were caused by hard and blunt weapons the daggers, as suggested in the FIR were not used in the commission of the offence and the intention on the part of applicants to murder the complainant or his associates is not spelled out. Under these circumstances, the case against the applicants requires further enquiry. Reference is placed on the following cases:--
1. Ranjho v/s State (2000 P.Cr.L.J 674).
2. Jamaldin and 2 others v/s The State (1978 SCMR 433)
3. Fazal Ahmad v/s The State (1995 SCMR 860)
4. Nosherwan alias Nosha v/s The State (1994 P.Cr.L.J 1476).
5. Attiqur Rahman v/s The State (1993 P.Cr.L.J 619).
6. Muhammad Usman v/s The State (1995 P.Cr.L.J 1569).
7. Mehboob and others v/s The State (1982 P.Cr.L.J 869).
8. Abdul Hameed Khan v/s The State (1978 P.Cr.L.J 150).
9. Allah Bachayo v/s The State (1985 P.Cr.L.J 1758).
10. Raham Ali v/s The State (1976 P.Cr.L.J 17).
11. Ghulam Hussain v/s The State (PLJ 2004 Cr.C Lahore 104).
The learned counsel appearing for the complainant and the state counsel have opposed the bail application on the premises that the applicants are nominated in FIR, the counter version itself indicates the offence has taken place and also suggests the implication of the applicants in the commission of the crime so much so they had proceeded to victimize a household lady Mst. Husna, which suggests the implication and the applicants with the desperate intention to commit the offence. It is urged that the victim Muhammad Ali, after the incident had undergone an operation and has suffered injury Shajjah Jaifiah, the maximum punishment provided is (10) ten years. It is next urged that after the bail of the applicants, was declined by the Session Judge, they had misused the situation and had surrendered before the Session Court. They had resorted to file the bail application before this Court, they are not entitled to the concession of pre-arrest bail.
The perusal of the record reveals that after the registration of the counter-case the applicants were involved in the commission of crime from the complainant's side were admitted on bail. It is an admitted fact that there are counter version and suppression of facts on the part of the complainant, while the FIR was set into motion for inaction against the applicants, which compelled the applicants to resort to the Court of law for redress thereupon a counter case against the complainant party was registered. The explanation set-forth by the learned counsel appearing for the complainant for six hours delay in registration of FIR is devoid of force as the distance between the Abbasi Shaheed Hospital and Police Station Nazimabad is hardly 3 kilometers, which suggests that the complainant had sufficient time to consult and nominate, each one of the applicants in the commission of the crime as well as 5 to 6 unidentified were also booked. For commission of an offence under Section 324 PPC, the intention to cause death or the knowledge that the death was likely to be caused has to be established. In any view of the matter the Dandas were used in the alleged commission of the crime as suggested in FIR, it cannot be presumed that the applicants intended to cause death. Medical evidence relating to Muhammad Ali, suggests that he had received wounds on nose. It is also not borne out from FIR as to which one of the applicant had caused the injury to victim Muhammad Ali, sweaping the general allegation against the applicants cannot ipso facto be taken as a ground to come to the conclusion at the bail stage, as to which one of the applicants had caused such injury.
Cr.C. Mst. Sardaran Bibi v. State PLJ
(Fazal-e-Miran Chauhan, J.)
2007 Mst. Sardaran Bibi v. State Cr.C.
(Fazal-e-Miran Chauhan, J.)
On the above discussions, I am satisfied that the case against the applicants requires further inquiry, there are suppression of facts and FIR was registered after consultation and due deliberation by the complainant party on account of counter incident with an intent to harass and humiliate the applicants, they are entitled to pre-arrest bail. The interim pre-arrest bail already granted to the applicants vide order date 9.1.2006 stands confirmed. Allowed.
B
(Fouzia Fazal) Bail granted.