2019 PLP 86 (YLRN)

KHADIM HUSSAIN TUNIO, J.

Through captioned application, applicants seek their release on post arrest bail in FIR No.10 /2014, Police Station Durani Mahar for offence under Sections 302, 452, 337-A(i), 337-F(i), 337-H(2), p.147, 148, 149, P.P.C.

2. Succulently, facts of the prosecution case as disclosed in the FIR lodged by the complainant Jafar on 20.5.2014 at 1240 hours at Police Station Durani Mahar are, that they are residing in village Hamid Malik. There is matrimonial dispute with Pyaro Sabzoi and they are fighting with them and such cases are already registered at Police Station Durrani Mahar. On 19.5.2014 he along with his brother Sain Bux, Ghulam Nabi, Hidayatullah alias Walidad and nephew Qamaruddin were present in their house at about 6:00 pm they saw and identified to be Bari Bux with hatchet, Karamullah with K.Kov, Arslan, Siraj Ahmed with latliies, Sikandar with lathi, Pyaro with gun, Barkat with gun Khawand Bux with gun, Ismail with hatchet and Khabar with lathi came and Bari Bux challenged and asked that they are not withdrawing from the cases, therefore, they will not spare them and commit their Qatal. Accused Bari Bux caused hatchet blow to Sain Bux at his head who fell down while raising cries. Accused Arslan caused lathi blow to Sain Bux which hit him at his left kidney. Accused Sikandar caused lathi blow to Sain Bux at his back and Barkat caused lathi blow to Sain Bux at his right elbow, accused Pyaro caused butt blows to Ghulam Nabi which hit him at his occipital region, accused Qaiser caused hatchet blow to Ghulam Nabi at his head, Karamullah caused lathi blow to Hidayatullah alias Walidad at right and left side of head, accused Arslah caused lathi blow to Hidayatullah at his left elbow and Qaisar caused hatchet to Qamaruddin at his head, Sirajuddin caused lathi blow to Qamaruddin at shoulder. They raised cries thereafter accused made firing in the air in order to cause harassment and run away towards southern side. Thereafter, he arranged conveyance and shifted injured persons to Police Station and obtained letter, brought them al Taluka hospital, Kandhkot for examination, treatment and report. However, injured were referred to Larkana. Sain Bux succumbed to injuries on the way. Thereafter complainant appeared at police station and lodged FIR.

3. Learned counsel for applicants has contended that applicants are innocent and falsely implicated by the complainant due to previous enmity; that all the PWs are interested and related to the complainant; there is one day's, un-explained delay in lodging the FIR; that the specific role for causing injury to deceased Sain Bux is alleged to have been attributed to applicant Barkat, that there is contradiction between ocular evidence and medical evidence; that during the investigation applicants have been declared innocent by the police; that the complainant has exaggerated the facts and nominated the applicants in order to see them behind the bars; that according to FIR and statements under section 161, Cr.P.C. of the P.Ws. there is allegation of causing of sharp side hatchet injuries to complainant party but the injuries on the body of injured person has been declared caused by hard and blunt substance; that the case of applicants calls for further inquiry. He has cited case-law reported in 1996 SCMR 1125, 2007 PCr.LJ 555 and 1274, 2013 PCr.LJ 856 and 863, 2014 PCr.LJ 658 and 1096, 2014 MLD 127 and 2017 SCMR 538.

4. While controverting the submissions made by the learned counsel for the applicants, Syed Sardar Ali Shah APG for the State has vehemently opposed the bail to the applicants and submitted that they are nominated in the FIR with specific role for causing injuries to deceased Sain Bux and injured PWs; that the applicants remained absconder. However, Mr. Saeed Ahmed Bijarnai learned counsel for the Complainant has vehemently opposed the bail.

5. I have given due consideration to the arguments advanced by the learned counsel for the applicants, State and complainant and perused the police file carefully with their assistance.

6. Admittedly, applicants are nominated in the FIR while attributing specific role. It is admitted position that applicant Barkat alleged to have caused hatchet blow to deceased Sain Bux per FIR but according to postmortem report deceased received injuries with hard blunt substance. There is contradiction between ocular account and medical evidence. No specific role is assigned to applicant Khawand Bux. Merely presence of the applicant namely Khawand Bux is shown at the place of occurrence at the time of commission of alleged incident whereas injury attributed to applicant Barkat has not been noted by the medical officer on the body of deceased Sain Bux while conducting autopsy. Vicarious liability would be determined at the trial. It would be decided after recording of evidence that the applicants formed unlawful assembly along with co-accused with their common object and came fully prepared at the place of incident for causing harm to the complainant party. The applicants are in custody and no more required for further investigation. The case of applicants is of two versions as they have been declared as innocent by the I.O. during investigation of the case, they have been joined by the learned Magistrate while taking cognizance of the offence and did not concur with the police report at the time of submission of report under section 173, Cr.P.C.

7. It has been held in case reported as Awal Khan and 7 others v. The State through AG-KPK and another 2017 SCMR 538) that:--

8. In a situation like this, this court in the cases of:-- (1) Khan Mir v. Amal Sherin (1989 SCMR 1987) (2) Muhammad Hanif v. Manzoor and 2 others (1982 SCMR 153). (3) Syed Khalid Hussain Shah v. The State (2014 SCMR 12) held that when the medical evidence is in conflict with the ocular account then, benefit of doubt at bail stage must go to the accused. In the case of Muhammad Hanif v. Manzoor (Supra), it was held as follows:-- "It is true that at the stage of deciding the question of bail, the court does not enter upon a detailed appreciation and examination of evidence, but it is also clear that the question cannot be decided when the bail is applied for. Now, in the present, case, result of medico-legal examination of the deceased was available and the learned Judge of High Court could not have refused to look at it." ..thus, the contradiction between the ocular account and medical evidence has rendered the case of the petitioners to be one of further inquiry at the movement". It has been observed in case of Muhammad Tanveer v. The State through Anees-ul-Arfeen (2014 PCr.LJ 1096) as under:--

8. In the next episode, it is observed that throughout the allegations, no role has been attributed to the present petitioner except his presence at the scene of incident. The petitioner neither alleged to have fired in the air nor he facilitated any of the co-accused, nor made any Lalkara or extended threats of any kind. Therefore, mere presence of the present petitioner at the scene of incident creates doubt about vicarious liability. Ultimately, his role will have to be determined during trial after recording of evidence and the material available on record. Such role assigned to the present petitioner creates a reasonable doubt about his participation in the commission of instant offence. The learned Lahore High Court has observed in case of Allah Ditta v. The State and another 2014 PCr.LJ 658 Lahore, as follows:-- "Whenever no overt act is ascribed to the petitioner accused, the Superior Courts are lenient towards admitting him to bail. Even otherwise, grant of bail does not mean that the accused has been acquitted; rather the custody is handed over in the hands of the surety". It has been opined in case titled as Mian Khan v.The State and another (2013 PCr.LJ 856), that:-- "Such circumstances coupled with contradiction in the ocular as well as medical account make the case against the petitioners one of further inquiry falling within the ambit of section 497(2), Cr.P.C. Reliance in this regard is placed on the case of Saeed Khan v. The State and another (2011 SCMR 1392), wherein it has been held as under:- " ..Contradiction is medical and ocular evidence....Record highlighted glaring contradictions between FIR/supplementary statement and medico legal certificate issued in respect of injured victim

According to FIR Supplementary statement alleged victim had received three firearm injuries on his right lower leg at the hands of culprits but according to medico legal certificate issued in respect of alleged victim there was only one fire shat received by him on his right lower leg

Such factors were sufficient to put caution regarding accused. So far as contention of the learned counsel for the complainant that offences against the petitioners entails capital punishment, therefore, they are not entitle to grant of relief prayed for is concerned, suffice it to say that in the case of Muhammad Ismail v. Muahmmad Rafique and another (PLD 1989 SC 585), the august Supreme Court of Pakistan has held that when otherwise case against the accused is covered under subsection (2) of section 497, Cr.P.C. he is entitled to the concession of bail as a matter of right. Moreover, bail could be granted if the accused has good case for grant of bail on merits and his absconsion would not come in the way while granting him bail. Reliance is placed upon Mitho Pitafi v. The State (2009 SCMR 299)".

8. For what it has been discussed above, I am of the opinion that the case of applicants require further inquiry. Accordingly, applicants were admitted to post arrest bail on furnishing solvent surety in the sum of Rs.500,000/- (Five Lac) each and PR bond in the like amount to the satisfaction of trial court vide short order dated 03.4.2017. These are the reasons for the same. MQ/K-20/Sindh Bail granted.