2004 PLP 2254 (YLR)

Applicant Ali Bahar is facing trial in Sessions Case No. 30 of 2003 pending in the Court of 2nd Additional Sessions Judge, Shikarpur for an offence under sections 302, 324, 337-H(ii), 148, 149, 114 and 34, P.P.C. in Crime No. 102 of 2002 of Police Station, Lakhi Ghulam Shah. The bail application filed on behalf of applicant/accused was dismissed on 13-8-2003 whereby the similar application has been filed before this Court for grant of bail. The contents of F.I.R. are reproduced herein below:- "Complainant complains that I am resident of village Ruk, there was murderous dispute between me and Jatoi tribes and murders were committed from both the sides. On the day of the incident, in the morning, I, my father Muhammad Rahim, my cousin Muhammad Parial, and relatives Wali Muhammad went together to their land for fetching grass from out paddy crop, when at about 8-00 a.m. concealed accused from Sim Shakh, near from the land, merged out to be Gul Muhammad son of Ghulamullah, (2) Anwar son of Muhammad Ayoob, (3) Miran Bux, (4) Fakhruddin, (5) Dilbar son of Arbello, (6) Hajan son of not known, all armed with K. Koves, Muhammad Khan son of Laiq, Abdul Latif son of Moutbar, Ziauddin son of Abdul Latif Qadir Bux son of Abdul Ghafoor, all armed with rifles, (11) Zamir son of Abdul Ghafoor, (12) Hissamuddin son of Abdul Ghafoor, armed with rifle, (13) Baloch son of Moutbar, armed with gun, (14) Laiq son of un-known, with rifle (15) Kazim son of Mistri with rifle, (16) Rind son of Mehrab, with rifle, (17) Peer Dino son of Eidan, with SMG, ' Muhammad Akram son of Pir Dino, with SMG, (19) Captain son of Ghoro with SMG, (20) Ghoro son of Ahmeddin with SMG, (21) Garho son of Muhammad Eidan with SMG, (22) Rano son of Wadhino, with rifle, (23) Mir Dost son of Wadhino, armed with gun, (24) Ghulam Shabbir son of not known, with gun, (25) Riaz son of Habubllah with SMG, (26) Ghulam Nabi son of Habibullah with SMG, (27) Aqil alias Ashique son of Muharam, with SMG, (28) Asif son of Muharam with rifle, (29) Ali Khan son of Khanan with rifle, (30) Zamir son of Shaman with rifle, all Tart by caste, (31) Siddique son of not known with SMG, (32) Hakim son of not known, with SMG, by caste Kharos, resident of Iron Bridge, Kheerthar Canal, (33) Nadir son of not known with SMG. (34) Rano son of not known with SMG, (35) Jam son of not known with SMG, all by caste Kharos resident, of Kheerthar Canal, (36) Adam son of Mithal, (37) Altaf son of Mithal, (38) Usman son of Dur Muhammad, with rifles, (39) Jamal son of Dur Muhammad, (40) Abdullah son of Muhbat, with SMG, (41) Anwar son of Qalander Bux with SMG, (42) Jato son of Qalander Bux with SMG, (43) Ghulam Qadir son of Qalander Bux with SMG, all Kursi by caste residents of Village Mithal Kursi, (44) Ali Sher son of Bux Bhurir with SMG, (45) Gulsher son of Bakhshoo Bhurir, with SMG,. resident of Village Arbab Burir, Taluka Lakhi Ghulam Shah, (46) Shahzado son of Bakhash Burir, with rifle, (47) Mashghool son of Kamber Burir, resident of Village Arbab Burir, (48) Akbar son of Laiq, (49) Shoukat Ali son of Laiq Burir, armed with gun, (50) Kuraro son of Iqbal Burir, with gun, (51) Bajhi son of Mirral Burir, with gun, (52) Karim Bux son of Meral Burir with gun, (53) Sher son of Parial Shar with K. Kove, (54) Akbar son of Hussain Shar, with SMG, resident of Village Parial Shar, (55) Karamullah son of Saindad Shar, with SMG, resident of Village Mubarak Shar, (56) Ali Bahar son of Jial Shar, resident of Village Jial Shar with rifle, (57) Sagheer son of Ghulam Nabi Kalhoro, resident of Samahani, Taluka Pano Akil, with rifle and 8 unidentified persons who were armed with guns, their faces were open and whom I and my witness saw clearly and will identify then again, came out, Abdul Lard instigated to all accused that Mahar are our enemies, and murder them on his instigation all the accuseed surrounded unlawfully and attacked upon us and started firing intention of murder, on which and others in order to salt ourselves concealed in wahi and accused Gul Muhammad Tart, Anwar, Dilbar fired from their k Koves and Baloch fired from his gun, at my father Muhammad Rahim, who fell down in wahi by raising cries, on which I and orb raised cries, on our cries and far reports persons from various cams came running from Ruk village by raising hakals, accused seeing them went towards their houses in village Dallo Tart and Rajib alongwith my witnesses went my father and saw that my fallen in Dayan-ji-Wahi and dead, having injuries on his nose, right side of chest nipple and on right side of I region, and blood was oozing was died, I then removed the body of my father Muhammad Rahim from Wahi, and leaving the witnesses over my father I went to my Nekmard Mehboob Maher who was not present, on his arrival in his house, I narrated him about the incident, who advised me to lodge the report I then went to police station and lodged the report that the above accused with their intention duly armed with deadly weapons and made unlawful assembly and attacked over the instigation of Abdul Latif and fired directly upon us with intention and murdered my father. I am complainant and investigate the case."

2. Mr. Jai Jai Veshnu, learned counsel for the applicant has contended that the present' case is off-shoot of enmity between Mahars and Jatois and several cases have been registered against them due to communal dispute. It is further alleged by the learned counsel in the F.I.R. that 57 persons have been named as an accused as armed with different weapons and no part of firing at deceased has been alleged against the applicant/accused. It is only stated in the F.I.R. that applicant/accused was present at the wardat armed with rifle and no rifle shot was made by him at the deceased. It is further alleged by the learned counsel that as per F. I. R. it is alleged that all the accused enumerated in the F.I. R. alongwith 8 unidentified persons who were armed with guns, rifles and K.K. SMG Rifles attacked upon the complainant party and started firing with intention to commit murder. Mr. Veshnu further submits that according to the F.I. R. co-accused Ghulam Muhammad, Anwar, Dilbar and Baloch fired at the deceased Muhammad Raheem through K.K., rifles and gun. It is further urged that there is general allegation that the other co-accused fired with their respective weapons upon the complainant party but they saved themselves and the applicant/accused is entitled for the concessions of bail. As a case has been made out as envisaged under 497(ii), Cr.P.C., Mr. Veshnu has relied upon the case of Muhammad v. The State 1998 SCMR 454.

3. Mr. Mushtaque Ahmed Kourejo, Advocate for the .State has not opposed the grant of bail as there is general allegation of firing and co-accused Ghulam Muhammad, Anwar, Dilbar and Baloch had fired directly at the deceased Muhammad Raheem.

4. After hearing learned counsel for the respective parties and after verifying the record brought on the file, I am of the opinion that the case for interference has been made out because no overt act is attributed to the applicant during the occurrence. In the F.I.R. specifically it is stated that the co-accused Ghulam Muhammad Anwar, Dilbar and Baloch have fired at the deceased Muhammad Raheem. There is communal dispute between the two groups namely Mahars and Jatois. Although they have taken law in the hands for deciding the dispute themselves -but the allegation against the applicant/accused is that he was armed with rifle but did not cause any injury to the deceased. His presence at the place of wardat will be determined at the trial stage for participating in the commission of the offence. Accordingly the applicant has made out a case for grant of bail and further enquiry is needed. Resultantly, applicant is admitted to bail in the sum of Rs.2,00,000 with one surety and P.R. bond in the like amount to the satisfaction of trial Court. H.B.T./A-56/K Bail granted.