AFTAB AHMED GORAR, J.---Applicant Sardar Alam son of Muhammad Azeem sought for post arrest bail in Crime No, 275 of 2017, Police Station SITE-A Karachi (West), registered under sections 324 and 34, P.P.C. Earlier the bail plea of the applicant was declined by the learned court of Session Judge, Karachi West vide order dated 5-8-2017..
2. The sum and substance of the prosecution story as is envisaged in the First Information Report are that on the eventful day co-accused Hussain Alam arrived at the shop of brother of complainant Samiullah and quarreled, meanwhile complainant came out of the Mosque tried to intervene the matter. However; it was about 2:30 p.m., applicants arrived at their house and started firing, in the result thereof complainant sustained fire arm injury at his knee joint, Muhammad Shafique sustained fire arm injuries on right leg, Saeedullah and Samiullah also sustained injuries due to maltreatment; all were shifted to Abbassi Shaheed Hospital by their relatives.
3. Mr. Mustafa Safvi, advocate, representing the applicant contended that applicant is innocent and has been falsely implicated by the complainant with mala fide, intention and ulterior motives, per learned counsel there is inordinate delay in lodgment of the FIR approximately three hours which is not plausibly explained; per learned counsel the alleged incident is merely a case of indiscriminate firing and no crime weapon has been recovered from possession of the applicant; per learned counsel as per prosecution case complainant has failed to justify specific role of firing to applicants; per learned counsel this is a case of further inquiry; per learned counsel the offence as per medico legal report falls within the domain of section 337-F(iii), P.P.C. wherein punishment is provided upto three years; hence the case of present applicant is covered under subsection (2) of section 497, Cr.P.C; per learned counsel injured did not received fatal injuries on the vital part of the body, the bullets received by them were on the legs; per learned counsel the prosecution witnesses are interested witnesses and being police personnel there is no apprehension of tampering with the prosecution evidences; per learned counsel the applicant may be enlarged on post arrest bail.
Learned counsel for the applicant has relied upon 2016 YLR 2727, 2009 SCM R 181, 2007 YLR 2818, PLD 2004 Supreme Court 477.
4. Mr. Saifullah, Advocate, representing the complainant contended that applicant is nominated in the FIR with specific role; per learned counsel there is motive behind the scenario which is apparent on the face of FIR; per learned counsel complainant and his brother have received fire arm injuries and medical report is also positive; per learned counsel, the advocate for applicant has also admitted and mentioned in Ground No, J of the bail application that the injuries have been sustained by the injured due to fire arm shots and are on non-vital part of the body; per learned counsel this admissions itself suffice the totality of things; per learned counsel the knee joint is vital part of the body because it moves leg; per learned counsel the complainant is innocent and was running his business peacefully but applicants are annoyed with the said business; per learned counsel the delay of three hours is no more question delaying in lodgment of the FIR because in this heinous type of offences some time may automatically be consumed; per learned counsel earlier the bail plea of interim pre arrest has been recalled by the learned Session Judge Karachi, therefore present applicant did not deserve for the concession of post arrest bail; per learned counsel there is no case made out which do fall within the domain of subsection (2) of section 497, Cr.P.C; per learned counsel the bail plea of the applicant may be declined.
Learned counsel has relied upon the case law reported in 2002 SCM R 1370.
5. Rahat Ehsan, Additional Prosecutor General representing the State opt the arguments advanced by the learned counsel for the complainant and contended that applicant has committed heinous type of offence; per learned Addl.P.G there is isolated and specific role attributed to the applicant of making firing upon the complainant party with intention to kill them but they have been luckily saved; per learned Addl.P.G there is repeatation of fire shot over main gate of the house of complainant as well as to the injured; per learned Addl.P.G the act of applicant seems to have been hardened, desperate and dangerous one; per learned Addl. P.G the applicant is not entitled for the concession of bail; per learned Addl.P.G the bail plea of the applicant may be declined in the interest of justice.
6. Heard and perused.
7. Admittedly, primarily there was motive behind the scenario because applicant went at the shop of brother of complainant and quarreled thereafter it was about 2:30 p.m., applicant together with accomplices arrived at the house of complainant and made straight firing upon complainant whereby complainant sustained injuries on left knee joint, Muhammad Shafiq sustained firearm injuries on right leg, Saeedullah and Samiullah also sustained injuries due to maltreatment, meaning thereby there was repeatation of firing with intention to cause grievous hurts but luckily complainant party saved of grievous hurts; the alleged firing is also admitted by the learned counsel for the applicant at Ground No, J of the bail application as was argued by the learned counsel for the complainant. Besides above, five bullets have been fired at the outer gate of the house of complainant; as per memo. of place of occurrence, there is recovery of four pallets and five empty shells of .30 bore pistol from the venue of occurrence. More so; two accomplices Hussain Alam and Muhammad Alam are still absconders and are fugitive from the law, may be both are watching the proceedings behind the curtain. However; charge before the trial Court has been framed and now the case is ripe up for evidence of the prosecution witnesses, let the evidence be recorded just to lift ash over mirror. At this juncture, the guilt of the applicant does not come within the domain of subsection (2) of section 497, Cr.P.C. The case law referred by the learned counsel for the applicant is quite distinguishable and could not be helpful to the applicant as well. Be that as it may, I am convinced with the case law reported in 2002 SCM R 1370, it has been held as follows:-- "---5.497---Penal Code (XLV of 1860), Ss. 337-A(ii)1337-F(i)/337-F(ii)/34---Constitution of Pakistan (1973), Art.185(3)--- Bail---Petitioner filed bail application for offences under Ss. 337- A(ii)/337-F(i)/337-F(ii)/34, but High Court declined bail to accused mainly on the ground that on facts and circumstances of the case provisions of S. 324, P.P.C. were, prima facie, attracted and as such the bail plea was hit by the prohibition contained in S.497(1), Cr.P.C.---High Court in view of the facts stated in the FIR had exercised its discretion correctly which did not warrant any interference---Leave to appeal was refused to accused by Supreme Court accordingly"
(The underline is mine)
8. The upshot of above discussions, applicant has lost his right for grant of post arrest bail, therefore, the bail plea of the applicant is hereby declined.