2006 PLP 1930 (MLD)

MUHAMMAD AFZAL SOOMRO, J.

By this order I propose to dispose Criminal Bail Applications Nos. 651 of 2005 and 832 of 2005 by a consolidated order as both arise out of one and the same F.I.R.

2. At the very outset Mr. Nisar Ahmed G. Abro learned counsel for the applicants does not press the application for bail on behalf of applicants Nos. 2 and 3, which is dismissed as such.

3. The brief facts of the case as unfolded in the F.I.R. are reproduced hereinbelow:-- "It is complained that my maternal grandmother, namely Satbhrai had expired and today I and my father Ali Hassan came to the Phulpoto village of Sooban alias Sher Muhammad Phulpoto to attend the funeral. My relatives took the dead-body of my maternal grandmother to bury towards graveyard while I and my father Ali Hassan along with certain other relatives remained at the funeral-mat. In the meantime, at about 1.30 p.m., one Shahzado alias Bolo son of Mumtaz,

2. Fateh Ali son of Muhammad Bachal,

3. Manzoor Ali son of Ali Muhammad Phulpoto, residents of village Haji Mangio Phulpoto, Taluka Warah,

4. Qamaruddin son of Laloo,

5. Haji son of Ahmed,

6. Iqbal son of Muhammad Waris, by caste Phulpoto, who were having shortguns in their hand,

7. Akhtiar alias Papoo son of Arbab Ali,

8. Bakhshal alias Mann son of Hakim Ali, who had hatchets, all by caste Phulpoto, residents of village Satoo Phulpoto, Taluka Warah, intruded into the house. Of them, Shahzado alias Bolo and Qamar-ud-Din pointing their shortguns asked us not to move and they will murder Ali Hassan as Ali Hassan has been restrained from visiting the village. After that, Manzoor Ali fired gunshot straight at my father Ali Hassan with intention to murder, which hit him above his right eye and Shahzado alias Bolo opened gunshot, which hit my father at right side of his chest. Qamar-ud-Din fired gunshot, which hit my father on his back. On sustaining such injuries, my father Ali Hassan fell down by raising cry. Thereafter, accused Haji also fired gunshot, which hit my father on his left arm near elbow; accused Fateh Ali fired gunshot, which hit my father at right fore-arm and accused Iqbal also fired gunshot, which hit my father Ali Hassan on his wrist of arm. Thereafter accused Akhtiar alias Papoo and Bakhsal alias Mann caused sharp side hatchet blows to my father Ali Hassan at back of his neck and head. We raised cries, which attracted my cousin Muhammad Ismail son of Sher Muhammad and Mst. Bakhtawar wife of Sher Muhammad Phulpoto, who tried to rescue Ali Hassan, on which, accused Akhtiar alias Papoo inflicted hatchet blows to Muhammad Ismail at his head and other parts of body, while accused Bakhshal alias Mann inflicted blunt side hatchet blows to Mst. Bakhtawar at her left shoulder, back and other parts of body. Thereafter all the accused persons fled away along with their weapons. We then saw that my father Ali Hassan after struggling for life passed away within our sight. I then left the above witnesses at the dead-body and now report to the above effect that the above-mentioned accused have committed murder of my father. I am complainant, investigation be made."

4. After usual investigation and in due course the applicants were arrested and sent up to stand trial. Both the applicants applied their release on bail in the Court of learned .Sessions Judge, Kamber-Shandadkot at Kamber but their request was turned down, vide order, dated 29-9-2005. Hence this application.

5. I have heard the learned counsel for the respective parties. It have been contended by the learned counsel for the applicants that they have been falsely implicated in the commission of this case. The allegation against the applicant Fateh Ali is that he fired gunshot which hit the deceased at right fore-arm while accused Iqbal is alleged to have fired at the deceased which hit him on the wrist of arm of the deceased. It has also been contended that both the fire-arm injuries are on the non-vital part of the body. It has also been contended that the direct allegation of commission of murder of deceased Ali Hassan is attributed to co-accused Manzoor, Shahzado, Qamar-ud-Din and Bashir. Learned counsel further submitted that injuries Nos. 10 and 11 are the result of one shot and the doctor, who conducted autopsy of deceased, has not yet been examined. In that eventuality learned counsel submitted that the offence if any alleged against the applicants does not attract the prohibition contained in section 497, Cr.P.C. and the case of the applicant needs further enquiry, and they are entitled to be released on bail.

6. On the other hand, Mr. Ali Nawaz Ghanghro, learned counsel for the complainant while opposing the bail applications submitted that it is a day time incident and the F.I.R. was lodged promptly. Both the applicants are .named in the F.I.R. coupled with the supporting medical evidence and the recovery of gun from applicant Iqbal. He also submitted that the P.Ws. are natural witnesses and there is no possibility of false implication of the applicants at the hands of complainant.

7. Mr. Muhammad Ismail Bhutto, learned State counsel conceded the arguments of Mr. Ali Nawaz Ghanghro and opposed the bail application.

8. I have heard the arguments of the learned counsel for the parties and perused the record carefully. The record reveals that although both the applicants are named in the F.I.R. with specific role of firing at the deceased but the injuries attributed to the applicants are on non-vital part of the body. The perusal of post-mortem notes would reveal that injuries Nos. 10 and 11 are attributed to the applicants. Both these injuries are said to be the result of one shot. Further, they are simple in nature and obviously will not attract the prohibitory clause of section 497, Cr.P.C. The enmity is admitted in the F.I.R.

9. In such circumstances since the applicants are not alleged to have caused fatal injuries to the deceased, they have been able to make out a case for bail. Consequently both the applicants, namely Iqbal son of Muhammad Waris and Fateh Ali son of Muhammad Bachal are allowed bail provided they furnish surety in the sum of Rs.200,000 each with P.R. in the like amount to the satisfaction of the Trial Court.

10. Criminal Bail Applications Nos. 651 and 832 of 2005 stand disposed of. H.B.T./I-20/K Bail granted.