' HASAN FEROZ, J.---By this order, I intend to dispose of above Criminal Bail Application No,S- 863/2013 moved on behalf of applicant Habibullah Shan by Mr. Amjad Ali Sahtio, Advocate in Crime No,4 of 2013 of Police Station, Soofi Faqeer, Umerkot under sections 324, 147,148, 149 , 337-H(2), 114, 337- A(i), 337-F(i), P.P.C.
2. Concisely the brief facts of the prosecution case are that on 8-7-2013 the complainant Abdullah lodged F.I.R. Alleging therein that there is an old enmity between the parties and such cases are pending trial before the Courts. On the day of incident, the present applicant Habibullah Shar armed with pistol along with co-accused came on two motorcycles at Dhoro Mori where Abdul Ali was already available, who intercepted the car of the complainant party in which complainant Abdullah and his brother Ghulam Mustafa and Muhammad Azam Nohani were present and got down from the motorcycles, on which Abdul Ali instigated all of the accused persons to kill Ghulam Mustafa, meanwhile, on his instigation, accused Murad Ali and others alighted Ghulam Mustafa from the car and caused back side of hatchet blow on his head, so also accused Shahzad Ali caused hatchet blow on his head and Ghulam Mustafa fell down on the ground and applicant/accused Habibullah Shar fired from his pistol which hit him on his right hip. Thereafter the complainant party took injured Ghulam Mustafa towards Civil Hospital, Mirpurkhas from where injured was referred to LMC, Hyderabad for treatment and then complainant party lodged F.I.R. As stated above.
3. Mr. Amjad Ali Sahito, learned counsel for the applicant has contended that the applicant is innocent and has been falsely implicated in this case due to enmity which enmity between the parties is admitted by the complainant in the F.I.R. Learned counsel further contended that in fact the present applicant is Shar by caste having no concern with this case, but due to quarrel took place between applicant and complainant's brother Zubair Sahito one month prior to the instant crime, therefore, he has been implicated in order to teach him a lesson. Learned counsel further urged that the alleged sections do not fall within the prohibitory clause of section 497 Cr.P.C. And punishment provided by sections 337-F(i) to F(iv) is only Arsh and Daman which is punishable with imprisonment for seven years and the present applicant is neither previous convict nor hardened, desperate or dangerous. Learned counsel further contended that applicant allegedly fired upon the injured Ghulam Mustafa, which hit him on his right leg, which is not on vital part of the body and the alleged injury stated to be caused by present applicant has been declared Ghayr Jaifah Munaqqillah, for which punishment is provided upto five years and does not fall within the prohibitory clause of section 497(1), Cr.P.C. Learned counsel further argued that the applicant did not repeat fire upon injured, therefore, section 324, P.P.C. Is yet to be determined at the time of trial.
In view of above facts and circumstances, learned counsel contends that the case of present applicant requires further inquiry and he is entitled for concession of bail. In support of his contentions, Mr. Amjad learned counsel has relied upon the cases of MUHAMMAD UMAR v. STATE (PLD 2004 SC 477), JAN MUHAMMAD v. Haji NOOR JAMAL (1998 SCMR 500), UMAR HAYAT v. STATE (2008 SCMR 1621), Haji MAA DIN v. STATE (1998 SCMR 1528), MUHAMMAD SAEED v. STATE (2006 YLR 1591), MUHAMMAD SARWAR v. STATE (2005 MLD 566) and MAZHAR HUSSAIN v. STATE (2012 SCMR 887).
4. On the other hand, learned DDPP has opposed the grant of bail to the applicant on the ground that the applicant is nominated in the F.I.R. With specific role of firing with pistol and caused injury to the injured Ghulam Mustafa, which hit him on his right hip, therefore, he is not entitled for bail.
5. Learned counsel for complainant has also strongly opposed the grant of bail to the present applicant, inter alia, on the ground that the applicant had intentionally fired from his pistol upon injured, which hit him on his hip of right leg, therefore, prima facie, section 324, P.P.C. Is attracted against him. Learned counsel for complainant further contended that the version of complainant is fully supported by the statements of P.Ws. Recorded under section 161, Cr.P.C. And crime weapon has also been recovered from the possession of present applicant. In support of his contentions, learned counsel for complainant relied upon the cases of WAQAS AHMAD v. STATE (2005 SCMR 1496), DILBAR BAIG v. STATE (1998 SCMR 358), MUHAMMAD NAWAZ v. STATE (2004 SCMR 772), MUHAMMAD RAFIQUE v. STATE (2008 SCMR 678), MUHAMMAD HANIF v. STATE (2006 PCr.LJ 1788), MUHAMMAD ALI v. STATE (2005 YLR 1239), JUMMAN ALIAS JUMMOO v. STATE 2003 YLR 2131, AMJAD JAWED v. STATE (PLD 2007 Karachi 336), MIR HASSAN v. STATE (2012 MLD 377), LIAQUAT ALI v. STATE 2004 PCr.LJ 962), GHAZI KHAN v. STATE (2004 YLR 3346) and ARSHAD v. STATE (1996 SCMR' 1270).
6. I have considered the arguments advanced by learned counsel for the parties and have gone through the material available on record with their assistance and case-laws relied by both the parties.
7. No doubt, there is admitted enmity between the parties and cross cases against each other are pending trial before the different Courts. As per F.I.R., the name of present applicant Habibullah Shar has been mentioned in the F.I.R. With specific role of causing fire shot from his pistol upon injured Ghulam Mustafa which hit on his hip of right leg and crime weapon has also been recovered from the present applicant on his pointation. The version of complainant is supported by the P.Ws. In their statements under section 161, Cr.P.C. As well as medical evidence, therefore, at this stage prima facie it appears that the sections 324 and 337-F(vi), P.P.C. Are attracted which are punishable upto ten years and falls within the ambit of prohibitory clause of subsection (1) of section 497, Cr.P.C. In this context, I have in my consideration the decision of honourable Supreme Court of Pakistan reported in MUHAMMAD WAQAS v. STATE (2002 SCMR 1370), wherein the honourable apex Court upheld the order of High Court declining the bail plea of the accused mainly on the ground that on facts and circumstances of the case provisions of section 324, P.P.C.
Was, prima facie, attracted and was hit by the prohibitory cause.
8. Keeping in view the above dictum and supra citation relied by Mr. Shah in the circumstances of the present case, I am of the view at this stage that there are no grounds to believe that applicant has not committed the offence, therefore, he is not entitled for concession of bail, accordingly, the bail application is dismissed. However, the learned trial Court is directed to expedite the trial of the case. The authorities relied upon by the learned counsel for the applicant is distinguishable from the facts and circumstances of the present case.
9. The observations made herein above are tentative in nature and will not prejudice the case of either party at the time of trial.