AFTAB AHMED GORAR, J.---Applicant Juma Khan Brohi was admitted to interim pre-arrest bail on 14.11.2017 without going into the merits of the case, which is fixed today for confirmation or otherwise.
2. According to the case of prosecution, on 03.8.2016 one Mohammad Moosa Lashari lodged FIR at Police Station Saddar Jacobabad, stating therein that his brother Saleem Lashari was working as Munshi as well as Chowkidar at Dr. Ghulam Sarwar Lashari Ice Factory, situated at Juria Chowk, where accused Azizullah Dayo and Juman Khan Brohi (present applicant) were also working as mason, who had threatened his brother Saleem to leave his job of Chowkidar and Munshi. It was alleged in the FIR that on 29.7.2016, complainant, his cousin Nazakat Hussain, maternal uncle Haji Noor Mohammad and brother Saleem Lashari were present at the above ice factory, when at about 2.30 a.m. (midnight) they saw in the light of electricity bulbs accused persons, namely, Azizullah, Juma Khan and two unknown persons, all armed with T.T. Pistols, emerged there, pointed the pistols towards complainant's brother Saleem Lashari and accused Azizullah Dayo fired his T.T.
Pistol at Saleem Lashari, which hit him on his head and he fell down; then one of the unknown culprit also fired his T.T. Pistol, which hit accused Juma Khan, who also fell down. After that, all the accused persons fled away.
3. Learned Counsel for the applicant/ accused, inter alia, contends that the applicant is innocent and has been falsely implicated with mala fide intention and ulterior motives. He further contends that there is delay of five days in lodging the FIR. Learned Counsel submits that no overt act in the incident is attributed to the applicant rather the applicant is shown to have sustained firearm injury allegedly in the result of fire made by co-accused. According to the learned Counsel, there is a counter version of the same incident in shape of FIR bearing crime No,119/2016, which was lodged by one Manzoor Ahmed, owner of the ice factory, on 30.7.2016 i,e, four days prior to the registration of present FIR, wherein applicant/accused Juma Khan was shown as injured prosecution witness, while co-accused Azizullah Dayo was named as an accused. He also contends that after thorough investigation the FIR of this case was recommended by the investigating officer for disposal under "C" class, b t such report was not accepted by the concerned Magistrate and the case was challaned. Learned Counsel further contends that in view of two versions of the incident this is a fit case which is covered in the purview of further enquiry as provided under subsection (2) of section 497, Cr.P.C. therefore, the applicant is entitled to concession of bail.
4. Conversely, the learned Counsel for the complainant vehemently opposed the bail application and contented that the applicant is nominated in the FIR; that though the case after investigation was recommended for disposal under "C" class but such opinion of investigating officer was not approved by the learned Magistrate; that presence of the applicant at the scene of occurrence at the relevant time stands established from the injury sustained by him at the hands of his accomplice, therefore, he is not entitled for extraordinary concession of pre-arrest bail.
5. Learned Additional Prosecutor General, however, concedes for grant of bail application on the ground that in the light of two F.I.Rs regarding the same incident, the case against the applicant requires further enquiry.
6. Heard learned Counsel for the applicant as well as the complainant, learned Additional P.G for the State and perused the record.
7. In this case, the incident is admittedly of 29.7.2016, which was reported to police by complainant Mohammad Moosa after five days i,e, on 03.8.2016. Such inordinate and scandalous delay of five days without having been plausibly explained is fatal to the prosecution case, more particularly in presence of another version of the same incident recorded in FIR No,119/2016, which was lodged by owner of the ice factory in question, namely, Manzoor Ahmed, who was having no relation to either of the parties. A perusal of FIR No,119/2016 shows that when accused Azizullah nominated therein fired at deceased Saleem Lashari, the present applicant ,Juma Khan Brohi grappled with him, whereupon accused Azizullah not only fired at him, but also inflicted blows with an iron clip, resulting in causing in all 10 injuries on the head of the applicant, which version is supported from the medico-legal certificate of the applicant available on record of Crime No,119/2016. The motive behind the offence set-forth by complainant Mohammad Moosa in the FIR does not appeal to be sound. The version mentioned in FIR No,119/2016, which was lodged four days prior to the instant FIR No,128/2016, is altogether different. The applicant is not alleged to have fired at the deceased.
Moreover, the version of complainant in the instant FIR after investigation was not found correct, therefore, the same was recommended for disposal under 'C" class.
8. Cumulative effect of the above is that when the applicant is not alleged to have fired at the deceased, the FIR was lodged after delay of five days, there is another version of the same incident mentioned in FIR No,119/2016, which was lodged four days prior to the instant FIR, applicant has sustained 10 injuries on his person, the FIR of this case after investigation was recommended to be disposed of under "C" class, the motive behind the offence alleged by complainant Mohammad Moosa does not appear to be sound, it can safely be held that there are sufficient grounds to that the involvement of the applicant requires further enquiry. Accordingly, the bail application is allowed, interim pre-arrest bail already granted to the applicant is hereby confirmed on same terms and conditions.
9. Before parting with the above order, it may be observed here that the observations recorded hereinabove are tentative in nature and the trial Court shall proceed with the trial of the case without being influenced from the same in any manner.