2006 P Cr (PLP)

MUNIB AHMED KHAN, J.

The factual position coming out of F.I.R. is as under:-- "That report of the complainant is that I reside at the address mentioned above and am Professor in Government College Kali Mori. At present we are three brothers, out of them Abdul Majeed is elder brother, who used to reside at village. There is a plot of Jamia Masjid situated beside the mosque in our Muhalla. For which Ghulam Mustafa Sarhandi used to say that it was his plot and not of Jamia Masjid. To whom my brother Abdul Majeed used to say that this plot is of mosque and not your. On which Pir Ghulam Mustafa Sarhandi used to say him that he would see him that as to how he would not deliver the plot to them. Today dated 15-9-2005 my cousin Rifat Jellani told me on telephonic call, when I was on duty at Government College, Kali Mori, Hyderabad, that today at morning at the time of Fajar he and Zubair son of Abdul Raul and Abdul Majeed altogether went to Jamia Masjid for Fajar prayer that at about 0500 hours, each one Ghulam Mustafa Sarhandi son of Pir Abdul Wahid Sarhandi and his uncle Abdul Samad son of Abdullah Jan Sarhandi came and Ghulam Mustafa had dagger and Abdul Samad had hatchet who said to Abdul Majeed that he had enjoyed much days and he will be killed today and by saying so Abdul Samad caused hatchet blow on the head and Ghulam Mustafa caused dagger blows on his belly and chest. Abdul Majeed fell down on the ground due to injuries and expired. On such information I came to Hala Hospital, where I found that there were injuries to my brother Abdul Majeed on head and feet of hatchet and on chest and belly of dagger and he had expired, where police of Hala was present and dead body was handed over to us after completing legal formalities. By leaving dead body at house now appear and complain that accused Pir Ghulam Mustafa Sarhandi and Pir Abdul Samad Sarhandi, on the instigation of Pir Akber Sarhandi son of Abdul Samad Sarhandi and his brother Pir Noor Muhammad Sarhandi son of Abdul Samad Sarhandi have murdered my brother Abdul Majeed Qureshi by causing the hatchet and dagger blows. I am complainant investigation be done." Mr. Madad Ali Shah has moved this bail application on behalf of the applicants and he has taken case of both the accused separately. In respect to Pir Muhammad Noor, he has stated that he has not been named in the F.I.R. as. according to the version stated in the F.I.R., there was two persons namely Ghulam Mustafa Sarhandi and Abdul Samad and both were armed with dagger and hatchet respectively and both of them caused injuries with the articles which they were holding, therefore, Pir Muhammad Noor is not involved and he has been named in the 162, Cr.P.C. statement recorded on 29-9-2005 i.e. after about 15 days of the lodging of FIR. In this respect he has relied upon 1995 SCMR 310 in which case accused was granted bail although he was allegedly catching hold of the deceased. He has further relied upon 1978 SCMR 357 on the same point as well as 2005 YLR

470. He has submitted that in all the three authorities, the accused was catching hold of the deceased but bail was granted. He has further stated that allegation against him in 162, Cr.P.C. statement is that he caught hold of arm of the deceased while other persons caused injuries. Learned State Counsel Mr. Amir Ali Thari, keeping in view non-appearance of the name of Pir Muhammad Noor in the F.I.R. as well as recording of 162, Cr.P.C. statement at later stage as well as the authorities relied upon by the applicant's counsel, does not oppose the bail of Pir Muhammad Noor who is granted bail in the sum of Rs.2,00,000 (Rs. Two lacs) and P.R. Bond in the like amount to be furnished before the trial Court. As far as accused Pir Abdul Samad is concerned, learned counsel for the applicant has stated that he is an old man of 79 years and five months. He has submitted his NICs (old and new) as well as medical prescription which shows that Abdul Samad was examined as out door patient in Liaquat University Hospital, Hyderabad as under-trial prisoner and his age has been shown as 80 years in that certificate which is certified copy of the prescription obtained from the case file of trial Court. According to Mr. Madad Ali Shah, accused was referred by the Sessions Judge for examination/treatment and according to that certificate, accused is suffering from cataract and in the opinion of the doctor accused needs Cataract Surgery and drain. Mr. Shah has relied upon NLR 1978 Cr. 328 on the ground that old age accused with Cataract in eyes was granted bail. He has further submitted decisions reported in 1984 SCMR 1083 and 2003 MLD 905 on the ground that the bail has been granted to the accused on the ground of infirmity and old age of the accused and in that case the accused was above 70 years. He has relied upon 1996 SCMR 861 and 2006 PCr.C.R. 275, in both these cases, bail has been granted on the ground of old age and at the last he has submitted 1973 PCr.LJ 375 on the ground that even if there is no illness but the accused is an old man of 68 or 70 years then the bail may be granted to him. He has further submitted that there is no recovery from accused Abdul Samad and according to the police, recovery of both dagger and hatchet has been made from Ghulam Mustafa. He has also pointed out that alleged murder took place in a mosque at Fajar prayer time but there is no independent witness from the Namazies. He has further submitted that there is delay of eight (8) hours in lodging of F.I.R. which shows preparation to involve more persons. On the other hand, learned State Counsel has stated that accused has been assigned specific role and he has caused head injury by hatchet and the delay in lodging of F.I.R. has been explained as the incident took place at Hala and complainant received information at Government Degree College, Kali Mori at Hyderabad and then went to Hala and lodged the F.I.R. He has further stated that involvement of the accused is corroborated by statements under sections 161 and 162, Cr.P.C. He has further submitted that the old age cannot be a confirm ground in the light of 1977 SCMR 52, 1979 SCMR 114, 1977 SCMR

27. He has further submitted that certificate submitted by the accused cannot be taken as conclusive proof of illness as there should have been a Medical Board including the Jail Doctor, therefore, the bail application of Abdul Samad is to be rejected. ? After hearing of the arguments and perusing the documents, I have observed that the incident has taken place in the mosque but there is no witness from Namazies. It has also been observed that according to F.I.R., deceased was accompanied with Rifat Jellani and Zubair and these three persons were faced by two persons then there should have been some resistance from the companions of the deceased but the F.I.R. is silent on this issue. It is apparent from the F.I.R. that it was also possible that the F.I.R. could be lodged by either of Rifat Jellani or Zubair who were present at the site but they have not lodged F.I.R. and intimated the complainant, the brother of deceased, who lodged the F.I.R. at 1300 hours. The F.I.R. is silent in respect of the time of information as at the most, distance between Hyderabad and Hala can be covered with one and half hours but the F.I.R. has been lodged after eight (8) hours. On the other hand, the accused, according to the old NIC as well as computerized NIC issued by NADRA, is more than 79 years old and according to copy of prescription obtained from the Sessions Court record shows that he is 80 years of age and need, Cataract operation which is very much natural at that stage of age. It has also come on record that in the statement under section 162, Cr.P.C. eye-witnesses have given different versions as according to them two persons caught hold of the deceased and other two caused injuries. The said version is contrary to the statement in the F.I.R. In the circumstances, the case of accused Abdul Samad needs further inquiry and he is also granted bail in the sum of Rs.2,00,000 (Rs. two lass) and P.R. Bond in the like amount to the satisfaction of trial Court. H.B.T./M-86/K??????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.