SHAMSUDDIN ABBASI, J.---By this common order, I would like to dispose of Crl. B. A. No, S-567 of 2017 filed by applicants Ali Baig alias Ali, Asad Baig alias Asad, Mujeeb-ur-Rehman, Crl. B.A. No,S-610 of 2017 filed by applicant Ahmed alias Ahmed Khan, Crl. B.A. No, S-787 of 2017 filed by applicant Rajibuddin for grant of bail before arrest and Crl.B.A. No,S-46 of 2018 filed by applicant Ali Asghar alias Asghar Ali for grant of post-arrest bail as same arise out of Crime No,203/2017 Police Station Dars registered for offence under Sections 395, 324, 506(2), 337-A(i), 337-F(i), 148, 149, P.P.C.
2. The brief facts leading to these bail applications as per prosecution case are that on 29.07.2017 complainant Muhammad Yousif lodged FIR at 1230 hours, in respect of incident alleged to have taken place on 13.7.2017 at 0545 hours. It is alleged that on the day of incident complainant along with his maternal cousin Abdul Ghaffar proceeded on motorcycle towards Moro to collect their amount from one Sher Khan Memon. Thereafter they returned back on link road towards Moro New Jatoi near village Kouro Behan. It was evening time they saw two motorcycles, on which accused, persons namely Ali Baig alias Ali with repeater, Asad Baig alias Asad with dagger, Mohsin alias Mujjan with dagger, Ahmed son of Sharif with Pistol, Asghar with hatchet, Rajib alias Rajoo Bohio resident of Manik Bohio with repeater, accused Ali Baig Panhwar robbed Rs.25,000/- from complainant. It is alleged that accused persons made firing which landed upon complainant at the lower side of left leg, accused persons also caused butt injuries to the complainant and subsequently, they went away, hence the FIR was lodged as stated above.
3. After usual investigation, the case has been challaned before the Court of law.
4. Bail applications on behalf of present applicants were moved before the trial Court, same were rejected vide orders dated 18.09.2017, 15.12.2017 and 08.01.2018 respectively.
5. Learned counsel for the applicants contended that there is a delay of 16 days in lodging of FIR as per FIR incident is alleged to have taken place on 17.5.2017 at 5-45 pm whereas the FIR of the incident has been lodged on 29.7.2017 at 1230 hours and no plausible explanation has been furnished by the complainant for such extra ordinary delay in lodging of FIR. They further contended that the provisional medical certificates issued by M.L.O. to the injured were challenged, by the applicants and approached to the Director. Health for constitution of medical board regarding the genuineness of injuries, but the injured had not appeared before the Medical board therefore the case was kept in abeyance as per SOP, MLC. They further argued that non- appearance of injured before the Medical Board shows that injuries sustained by the complainant party were highly doubtful and it cannot be ruled out that all the injuries were self-suffered therefore the complainant party avoided to appear before the Medical Board. They further contended that there is recorded enmity between the parties and they have placed a copy of FIR bearing Crime No,76/2017 registered at Police Station Abran under section 382, P.P.C. in which 4he complainant party of this case has been nominated/implicated and that FIR has been lodged by Ali Bag (applicant in Cr.B.A.No,567/2017) and this FIR has been managed by the complainant in order to pressurize them to withdraw the case registered by applicant Ali Bag. They further contended that from the perusal of FIR complainant is residing in village Molvi Nizamuddin Panhwar whereas applicants Ali, Asad, Mohsin, Ahmed and Asghar are also residing in same village situated in Taluka Naushahro Feroze while incident has been shown to have taken place in Taluka Moro. They further argued that when both the parties are residing in same village why they have committed this offence at Taluka Moro. They further argued that after investigation, police has disposed of this case under 'B' Class as the police found all the nominated accused as innocent and submitted such summary report to the concerned Magistrate but the learned Magistrate did not agree with police opinion and has taken cognizance of the offence and directed the Investigating Officer to submit challan, therefore, the police has submitted the challan against the present applicant/accused. They further contended that there was mala fide on the part of complainant in order to justify the delay, the complainant has approached the learned Sessions Judge for registration of FIR and filed an application under sections 22-A and 22-B, Cr.P.C. which was allowed and thereafter FIR has been lodged. They further argued that there is also inconsistency between medical evidence and ocular version as according to the FIR jaw of injured Hamid Ali was dislocated but provisional medical certificate of injured Hamid Ali, is in consonance with the medical certificate, as per medical certificate, he has received 03, i. injuries reddish contusion 4 cm x 2 cm at left cheek, ii. Reddish contusion 4 cm x 2 cm at right side of back of chest and iii. incised wound 2 cm x 1 cm x muscle deep at left side of back of chest at scapular region.
They further contended that before registration of FIR complainant party had got registered NC at concerned PS which reveals that complainant has stated that accused party had fought with them. They further contended that during investigation police collected CDR of the complainant party as well as accused party which shows that at the time of incident both the parties were not available at the place of incident. They further argued that the complainant is a driver of Mr. Fakir Faiz Muhammad Leghari Advocate and applicant Rajib has no concern with the dispute between the complainant party and accused party but he has been implicated by the complainant at the behest of Miss Saima who is junior 'to Mr. Fakir Faiz Muhammad Leghari Advocate and there is series of criminal litigation between applicant Rajib and Miss. Saima's family and he has placed on record the copies of FIR. They further contended that place of incident is thickly populated area and busy road but the police has not examined any independent witness to support the version of complainant. They further contended that after submission of challan applicants/accused are regularly attending the trial Court but the complainant party is deliberately avoiding to proceed with the matter and they want to linger on this matter for one or the other reason and they have placed on record the case diaries dated 15.01.2018, 24.1.2018, 8.2.2018; 22.2.2018, 5.4.2018, 19.4.2018, 3.5.2018, 11.5.2018 and 24.5.2018, which reflect that on most of the date of hearings either complainant party did not appear or sought adjournment for one or the other reason.
6. Learned counsel for complainant contended that delay in lodging of FIR has been well explained as police had refused to register the FIR, therefore he approached learned Sessions Judge and filed application under sections 22-A and 22-B, Cr.P.C. for seeking directions for registration of FIR and his FIR has been registered on the directions of the learned Sessions Judge. He further contended that this is a day time incident and accused are nominated in the FIR with specific role of causing injuries to the complainant party as well as they have committed robbery of Rs.25,000/- cash from the complainant party. However, he has denied the allegation that the complainant is his personal driver and he has no relation with the complainant except that he is his client. At this juncture learned counsel for the complainant was put on query that why the injured witnesses have not appeared before the Medical Board on 'which he replied that they always have appeared before the Medical Board when they were called but the Medical Board has not examined them. He was also put on query that record shows that complainant party has deliberately avoided to proceed with the matter and the learned trial Court has almost examined all the official witnesses except private witnesses and such record has been produced by the applicants party, on that he replied that the complainant party always attended the learned trial Court whenever they were called.
7. I have heard the arguments of learned counsel for the applicants, learned counsel for complainant and learned DPG and I have also gone through the material available on record very carefully.
8. It is an admitted position that incident had taken place on 13.7.2017 at 5-45 pm. Complainant party approached to Police Station and Police referred them for medical treatment but FIR was not lodged. Though delay of 16 days in registration of FIR has been explained by the complainant that police refused him to register his FIR therefore he approached to the learned Ex-officio Justice of Peace Naushahro Feroze and got the directions for registration of FIR and thereafter, he lodged FIR of the incident but consultation and deliberation-cannot be ruled out particularly when the complainant shown this incident is the result of robbery but it is very difficult to believe on the ground that complainant party and accused party both are residing in village Molvi Nizamuddin Panhwar which is situated in Taluka Nauhahro Feroze whereas incident of this case has been shown in Taluka Moro. Besides this, learned counsel for the applicants have placed on record a copy of FIR No,76/2017 registered at PS Abran under Section 382, P.P.C. and that FIR has been registered by the applicant Ali Baig, against complainant and witnesses of this case, but this aspect of the case has been suppressed by the complainant of this case.
9. As far as the injuries sustained by PWs are concerned, the provisional medical certificates issued by MLO were challenged and applicants/accused have approached to the Director General Health Hyderabad to constitute Special Medical Board in order to ascertain nature/genuineness of injuries of complainant Muhammad Yousif, PWs Hamid Ali and Abdul Sattar. The Director General Health has constituted Special Medical Board comprising of experts/ specialists of People University of Medical Health Sciences for Women (PUMHSW) Shaheed Benzairabad. The Chairman Special Medical Board called the injured of this case on various dates i,e, 16.8.2017, 6.9.2017 and 20.9.2017 to appear before the Medical Board through SSP Naushahro Feroze but PWs/injured did not appear before the Medical Board therefore opinion of the case was kept in abeyance as per S.O.P. MLC and such information has been conveyed to Director General Health by the Chairman Special Medical Board (PUMHSW) Shaheed Benazirabad vide letter dated 23.09.2017. Non-appearance of PWs/injured before Special Medical Board apparently created doubt in this case on the point of genuineness of provisional medical certificate. Here at this stage when expert opinion is kept in abeyance by Special Medical Board, in my humble opinion Court cannot consider the provisional certificate till final opinion of Special Medical Board. However, as per medical certificate of complainant is concerned injuries (i), (ii), (iii), (iv), (v), (,) are reserved for final/expert's opinion whereas injury No,(vii) is declared as Shajah-eKhafifah which is punishable for 02 years and does not fall within the prohibitory clause of Section 497, Cr.P.C. Besides this, the injuries (i) and (ii) sustained by injured Abdul Ghaffar have been declared as Jurh Ghair Jaifa Badiah, whereas injuries (i) sustained by injured Hamid Ali has been declared as Shajjah Khafifah, injury (ii) is 337- L(2) and injury (Il) is Jurh Ghair Jaifa Badiah and the same do not fall within the Prohibitory Clause of Section 497(1), Cr.P.C.
10. Another important aspect of this case is that as per mashirnama of place of incident neither any empty has been recovered from the place of incident nor blood stained earth. It is also the matter of B record that neither police has recovered crime weapon used by the accused in the commission of alleged offence nor recovered robbed property.
11. It is pertinent to mention here that there is inconsistency between the medical evidence and ocular version as according to FIR jaw of injured Hamid Ali was C dislocated but provisional medical certificate of PW/injured Hamid Ali does not show that his jaw was dislocated.
12. During investigation I.O. of this case came to the conclusion that this is a false case managed by complainant party and he has recommended summary of the case under 'B' Class to the concerned Magistrate but learned Magistrate did not agree with the police opinion and took cognizance of the offence and directed the I.O. of the case to submit challan against the applicants/accused.
13. It is also pertinent to mention here that learned counsel for the applicants have placed case diaries of the case which reflects that the charge of this case has been framed by learned trial Court on 15.1.2018 and summonses were issued to PWs but complainant party on one or the other reason has sought adjournment or remained absent and avoided to proceed with the matter. The diaries further reflect that official witnesses have been examined but complainant party has avoided to proceed with the case on 24.1.2018, 8.2.2018, 22.2.2018, 22.3.2018, 5.4.2018, 19.4.2018, 3.5.2018, 11.5.2018 and 24.5.2018. Even the diary dated 24.5.2018 reflects that that the learned trial Court has issued BWs.
14. In the present case from the tentative assessment and material available on record I have come to the conclusion that due to delay in lodging of FIR, the final injuries were reserved for expert's opinion and that expert's opinion is not available on record and the complainant party deliberately avoided to appear before the Special Medical Board and also avoided to proceed with the matter and complainant has concealed the recorded enmity between the parties and in such circumstances prima facie the case of applicants/accused calls for further enquiry in terms of Section 497(2), Cr.P:C. Therefore, I allow these bail applications.
15. Accordingly, interim bail granted to applicants All Baig alias Asad Baig alias Asad, Mujeebur Rehman on 26.09.2017 in Crl.B.A.No,S-567 of 2017, interim bail granted to applicant Ahmed alias Ahmed Khan on 11.10.2017 in CrI.B.A. No,610 of 2017 and interim bail granted to applicant Rajibuddin on 22.12.2017 is hereby confirmed on same terms and condition. However, applicant Ali Asghar alias Asghar Ali in Crl.B.A. No,S-46 of 2018 is also granted post arrest bail subject to his furnishing surety in the sum of Rs.50,000/- and P.R Bond in the like amount to the satisfaction of the learned trial Court.
16. Needless to mention here that above observations are tentative in nature and trial. Court shall decide the case on merits.