1989 PLP 4134 (MLD)

The brief facts of the prosecution case are that there was some exchange of hot words between the parties about 3/4 months before the incident over digging of grave in which it is alleged that Ghulam Hussain Memon Chairman had extended threats to the complainant party, On 13-5-1988 complainant, deceased Abdul Rehman and P.Ws Abdul Latif and Abdul Jabbar were passing from Memon Goth and were going to market of Sajjan Goth and when they reached at Memon Goth Road near Habib Bank at 8.00 p.m. they found Ameer Bux. Hamid, Maqsood and Haji standing near a Pan Cabin, they were armed with Danda and Churri. As soon as the complainant party passed by side of the: accused, they told them that they will take revenge of the insult caused to the Chairman. Saying this they attacked the complainant party and after causing injuries to them the accused ran away. The complainant and three persons were inured. In the meanwhile, Hamid came, and brought the injured to Jinnah Hospital in Pick-up. Abdul Rehman died on the way. According to the complainant many persons had seen the incident at the spot. The complainant then lodged the report before the police. On the other hand applicant Rahim Bux had also filed a report before the police which was recorded under sections 324, 325 and 34 PPC. The applicants moved an application for bail before the learned trial ,fudge but the same was rejected. It has been contended by Mr. Makhdoom Saifuddin Siddiqui that there are counter cases between the parties and two persons from the side of the accused have also received injuries. He has further contended that the incident took place in the village of the applicants and therefore, the complainant party was aggressor. It was further contended that it cannot be said with certainty at this stage as to who was responsible for causing injuries Nos. 3: 4 and 5 to deceased Abdul Rehman and therefore, it was a case of further inquiry. Mr. Abdul Rahim Kazi, learned Addl. A.G. appearing for the State has opposed the grant of bail to the applicant Rahim Bux on the ground that blood stained Chhuri has been recovered from him and that the deceased had sustained six incised injuries and according to the witnesses applicant Rahim Bux and co -accused Amir Bux were armed with Chhuris. However. he had no objection to the grant of bail to co-accused applicants Maqsood and Abdul Hamid. I have considered the contentions of the learned counsel and have gone through two F.I.Rs. order rejecting bail application and medical certificates regarding injuries on applicant Rahim Bux and co-accused Dhani tux. The F.I.R. shows that the incident took place in the village of the applicants and it does not show as to who was armed with Lathi and who was armed with Churri. The allegations regarding causing of inures to deceased Abdul Rehman are general in nature. The accused of counter case have been released on bail. Applicant Rahim A Bux received as many as 5 injuries while co-accused Dhani Bux has received one incised injury which have not been explained by the prosecution in the F.I.R. as well as in the police statements. It cannot be said with certainty as to who was responsible for causing fatal injuries to deceased Abdul Rehman, as even according to the learned Addl. A. G. two persons were armed with Chhuri and both of them had caused injuries to the deceased. Reliance is placed on (1) Shehzad Sultan alias Bhola v. The State 1983 PCr.LJ 86 in which it was observed that:-- "What is more significant, however, is the fact that the petitioner himself has received four injuries including two on the head. He was also examined on 26-8-1981. soon after the medical examination of Inayat who was then still alive, but there is no mention of these injuries in the F.I.R. or in the statements of witnesses under section 161 Cr.P.C:" (2) In the case of Jaffar and others v. The State 1980 SCMR 784 it was observed by their Lordships of the Supreme Court that:-- "Material on record not showing as to which of accused caused fatal injury leaving room for consideration regarding common intention of other accused to kill deceased--Held, case one of further inquiry and bail was granted." In the present case it appears that there was a chance netting between the parties and it cannot he said with certainty as to who was responsible for causing fatal injuries to the deceased. In view of the above discussion and legal position, I am of the considered view that the case of the applicants requires further inquiry and therefore, I direct that the applicants shall be released on bail on furnishing surety in the sum of Rs. 5o,0oo each and P.R. bond in the like amount to the satisfaction of trial Court. However, if any tangible evidence is brought on record against any of the applicants during the trial, the learned trial Judge will be at liberty to cancel his bail. M.Y.H./R-94/K Bail granted,