2003 PLP 1044 (MLD)

Asif Ali Abdul Razak Soomro for Applicant. Ali Azhar Tunio, Asstt. A.-G. for the State. Date of hearing: 28th August, 2002. Applicant Illahi Bux has applied for grant of bail in Crime No.42 of 2002 registered at Police Station, Dakhan in an offence under sections 324, 34, P.P.C. on the complaint of Qamaruddin Siyal. The applicant was arrested on 19-7-2002 and after submitting the challan moved bail application in the Court of Session, which was marked to the learned Vth Additional Sessions Judge, Shikarpur for disposal according to law. The bail application was heard on 21-8-2002 whereas pre-arrest bail was extended to Majid Saleh and the bail plea. of the applicant/accused was declined by the learned Vth Additional Sessions Judge, Shikarpur. The applicant has filed similar application before this Court for grant of bail.

2. The brief facts as disclosed by the complainant Qamaruddin in his F.I.R. lodged on 18-7-2002. at Police Station, Dakhan are that the applicant/accused is his elder brother and there is dispute over the property since long between them. On 18-7-2002 complainant alongwith driver Samandar and another friend Sanaullah left for ploughing the lands on tractor when they reached at Medical Store of Aziz Siyal in Dakhan City, thereupon applicant Illah Bux and his nephew Majid were standing. Applicant Illah Bux was armed with shotgun and applicant abused the complainant and stated that as to why they are not giving him share from the property, on which Illahi Bux fired at the complainant, but the gun fire did not hit the complainant. P.W. Samandar Kharos and Sanaullah Marfani and other persons rescued by intervening them. Thereafter, accused persons went towards city. The F.I.R. was lodged at the police station and it is stated that applicant Illah Bux and Majid Siyal with common intention on dispute over property, thereupon Illahi Bux fired from shotgun upon complainant.

3. It is inter alia contended by the learned counsel that the applicant/accused was arrested on 19-7-2002 and a licensed gun was recovered on 23-7-2002 and this case was planted by the complainant Qamaruddin in view of the dispute over the property and F.I. R. has been lodged malafidely with intention to implicate the applicant/accused so that applicant may not claim his share from the property from the complainant. It is further urged by the learned counsel that no injury has been sustained by the complainant party or any recovery of cartridges was effected from the place of Vardat and it is yet to be determined by the trial Court whether any firing was made at the time of incident by the accused as the applicant/accused is elder brother of the complainant and no independent person was examined. According to the F.I.R. , it is stated that other persons intervened in the fight and rescued the complainant, but no independent person was examined by the prosecution. It is further urged that this is a case of ineffective firing and enmity is admitted in the F.I.R. and there is possibility that the applicant/accused had been involved falsely in order to surrender property share to the complainant. Learned counsel in support of his proposition has relied upon case of Ghulam Murtaza v. State (2001 PCr.LJ 1691).

4. Mr. Ali Azhar Tunio, learned Additional Advocate-General has conceded for grant of bail on the ground that 'complaint has not sustained any injury and no enmity was recovered from the place of Vardat and licensed gun was recovered from the applicant/accused and no independent witness was examined by the prosecution and in view of this position this is a case of further inquiry.

5. I have heard Mr. Asif Ali Abdul Razak Soomro, learned counsel for the applicant/accused and Mr. Ali Azhar Tunio, learned A.A.-G., on behalf of the State. The latter has conceded to the bail plea of the applicant/accused.

6. From the perusal of material placed on record shows that the applicant allegedly made firing upon the complainant with fire-arm, but not a single scratch has been received by complainant or any other person The enmity is existing between the parties as admitted in the F.I.R. The charge-sheet has already been filed in the Court of law. In view of the no objection rendered by the learned A.A.-G. and the peculiar facts and circumstances of the case, I am of the considered view that the applicant is entitled to bail. Consequently, he is granted bail in the sum of Rs. one lac and P.R. bond in the like amount to the satisfaction of trial Court. H.B.T./I-79/K Bail granted