2002 PLP 89 (YLR)

Muhammad Bachal Tonyo Addl. A.-G. for the State. This is an application for bail filed by the applicant Muhammad Ismail in connect; with Crime No. 12 of 2001, registered wit Police Station Naudero for offences under sections 302, 337-H(2) 148, 149 and 34 P.P.C. Briefly the facts of the prosecution case are, that the complainant party own 20-acres land. One Ali Gollar and Muhammad Ismail were interested in the sold land and has asked the complainant party to sell out the same to them which was declined by the complainant party resultantly they were on inimical terms. On 21-2-2001 complainant alongwith his father Allah Rakhyo, uncle Ali Khan, cousin Mohammad Hashim, Bashir ail Dr. Shabir Ahmed went to the hotel of Mashooq Ali to take tea and were sitting the on separate benches when at about 8-00 p.m. seven armed persons emerged there who were identified in the light of bulb be Ali Gohar,

2. Ali Gul.

3. Gul Hasan. Lutuf Ali,

5. Hidayatullah,

6. Mohammad Ismail and Dilawar all by caste Nareja, all duly armed with guns except Hidayatullah who was having hatchet. On the instigation of, Mohammad Ismail, Ali Gohar, Ali Gul and Gul Hassan fired from their respective guns at complainant's father Allah Rakhyo which hit him whereas accused Lutuf Ali, Dilawar and Mohammad Ismail made straight gun shot at Ali Khan which hit him. Both fell down raising cries, while accused Hidayatullah caused hatchet injuries to P. W. Mohammad Hashim. Complainant party raised cries whereafter the accused party left the scene, making aerial firing. Subsequently all the three were found unconscious lying on the ground, who were taken to the hospital by the complainant where injured Allah Rakhio and Ali Khan succumbed to injuries while injured Muhammad Hashim was immediately rushed to Larkana for prompt treatment. Then the complainant approached Police Station and lodged his report to the above effect. After recording of the F.I.R. applicant was arrested and sent up to stand trial before learned 1st Additional Sessions Judge, Larkana where bail plea moved on behalf of the applicant was declined on merits, on 23-4-2001. The said order was impugned before this Court whereupon vide order dated: 8-5-2001 trial Court directed to conclude the trial within one month. It appears that second bail application was also moved before trial Court which also met the same fate vide order dated 31-7-2001. Thereafter Transfer Application No. 32 of 2001 was moved on behalf of co-accused Ali Gohar before this Court. Apparently there was another bail application moved on behalf of the applicant Muhammad Ismail vide No. 506 of 2001 (1) No: 1081 of 2001 (K) on which order were passed to withdraw the file from the Court of learned 1st Additional Sessions Judge, Larkana to IInd Additional Sessions Judge, Larkana with direction to examine at least two witnesses i.e. complainant Nazeer Ahmed and P. W . Muhammad Hashim afterwards the present applicant was put to liberty to move for bail afresh. I have heard learned counsel for the parties and perused the material brought on record. It has been argued by the learned counsel for the applicant that according to the prosecution case the allegation of instigation and general role of firing at deceased Ali Khan--is attributed to the present applicant Mohammad Ibrahim and at this stage it cannot be ascertained as to which accused caused fatal injury to the deceased Ali Khan. Learned counsel further states that out of the seven accused, names of the two accused including present applicant was placed in Column No. 2 of the Challan. It is contended that according to the defendant witnesses applicant on the fateful day and time attended the marriage ceremony of one Pervaiz Ali Narejo, which fact is supported by statements under section 164 Cr.P.C. of respectables of the locality. He further contended that on the basis of non-compliance of the directions passed by this Court the applicant deserve the concession of bail. Mr. Ali Nawaz Ghanghro, learned counsel for the complainant, has argued prior to this two bail applications moved by the applicant before trial Court have been rejected on merits, despite directions passed by this Court for conclusion of the trial or at least examination of material witnesses, the case could not proceed and it was only for the reason that the learned counsel for the applicant chose to remain absent on various dates. S.H.O. concerned was also not in attendance and the police station concerned was influenced that is why police papers were not produced while the complainant and P. Ws. were all along present. This fact is supported by the letter dated 6-2-2002, sent to Office of this Court by learned 2nd Additional Sessions Judge, Larkana, which is self explanatory. He further contended that the applicant has been nominated in the F.I. R. Specific role of instigation and direct firing has been attributed to him and the version of the complainant is fully supported by the prosecution witnesses while the statements under section 164 Cr.P.C. filed by learned counsel for the applicant relate to the person of the locality who are related and interested witnesses which carries no weight as they have nothing to do with this case. Learned counsel for the State, adopting the arguments put forward by learned counsel for the complainant has vehemently opposed the grant of bail. The F.I.R. shows that Muhammad Ismail, the applicant, instigated others to open fire. Thereafter he alongwith Lutaf Ali and Dilawar fired shots at Ali Khan. If all three fired then it would be difficult to ascertain who fired the fatal shot. The bail applications were filed in this Court earlier but it was disposed of with a direction to the trial Court that the matter may be disposed of within a specified period. The counsel for the accused has also produced case diaries to try and prove that the matter has been delayed unnecessarily due to no fault of the accused. Learned counsel has also produced statements under section 164 Cr.P.C. of several persons, who have stated that the accused was attending the marriage of one Pervaiz Ahmed. The date given is 21-2-2001. In fact the time given is coinciding with the time and date mentioned in the F.I.R. Yet certain other witnesses have stated that Ismail was amongst those who attacked the complainant party. Considering all these facts it is not clear whether indeed the present applicant/accused is involved in the incident. It is also not clear whether the statements under section 164, Cr.P.C. of persons who have claimed that the applicant/accused Muhammad Ismail was attending wedding is correct or the statements of those persons who have confirmed whatever has been stated in the F.I.R. is correct. Indeed this can only be certified after evidence is recorded. Under these circumstances this is a case which necessitates further inquiry. Bail is accordingly stated to the applicant/accused Muhammad Ismail Narejo in the sum of Rs. 200,000 and P.R bond in the like amount to the satisfaction of the Additional Registrar of this Court. N.H.Q./M-365/K Bail allowed.