2003 P Cr (PLP)

Allah Bachayo Soomro for Applicant. Anwar Ansari for A.-G. for the State. By this application under section 497, Cr.P.C. applicant Muhammad Qasim son of Ali Murad seeks bail in Crime No. 18 of 2002, of Police Station Moonder wherein he has been shown to be one of the accused for commission of offence punishable under sections 302, 324, 353, 147, 148 and 149, P.P.C. read with section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979. As per prosecution story on 19-7-2002 on behalf of State, A.S.-I. Ghulam Mustafa Solangi, Incharge Police Station Moonder lodged following complaint;-- "I am posted as A.S.-I. At Police Station Moondar. Today on 19-7-2002, we have received a spy information that some criminals will come within the beat of Police Station Moondar and will-commit offence as such, we, A.S.-I. Ghulam Mustafa Solangi alongwith arms end ammunition one SMG No.35032607 with 2 magazines, 60 rounds. C/3632 Nizamuddin with one SMG No.35014083 with two magazines, 60 rounds, C/1476 Mehram Ali with one SMG No.14146953, two magazines, 60 rounds. C/2794 All Muhammad with one SMG Nn.19004137 with 3 magazines, 90 rounds left police station vide Roznamcha Entry No.50 at about 19-43 hours for patrolling and Nakabandi by foot. During patrolling when we reached at 22-00 hours by the Northern side of the water machine of Parchu Shuhani and, at the land of Budho Khan Shahani and while concealing ourselves in the leaves and started Nakabandi when at about 22-30 hours on the moonlight, we saw that some criminals were coming towards us from Eastern side to wham we identified to be each one Gulab son of; Gul Hassan Shahani brined with KK, (2) Nizam son of Gul Hassan Shahani armed with hatchet, (3) Khalid son of Gul Hassan armed with hatchet, (4) Yakoob son of Aziz Shahani armed with hatchet, (5) Qurban son of Haji Mehar Shahani armed with pistol, (6) Khan alias Khanu son of Ramzan Shahani armed with gun, (7) Major son of not known armed with KK, (8) Siddiq son of Gul Hassan Shahani, (9) Urs son of Taqio Shahni having Danda with butt, (10) Ali Gul son of Nooro Shahani armed with hatchet, (11) Qasim son of Haji Murad armed with gun, (12) Mehboob son of Ghulam Rasool having Lathi in his hand, (13) Fateh Ali alias Fattu son of Qassim Shahani armed with gun, who were coming in suspicious condition, to whom we disclosed of being police and gave Hakals to stop who after hearing of police with intention to kill started direct firing at us and we also in our defence fired. During this All the accused surrounded us and accused Nizam Shahani inflicted sharp side hatchet blows to me on my head and caused blunt side blows on my back and accused Major Shahani caused butt of KK blow on back of my right arm and thereafter, on the firing, the villagers came running after giving Hakals and accused while seeing them coming robbed my SMG with above mentioned number and two magazines alongwith bullets and after firing went towards Northern side. Thereafter, I saw that constable Nizamuddin and constable Mehram were lying injured on the ground. On enquiry, constable Nizamuddin informed that accused Khalid Shaltani, Yakoob Shahani and Ali Gul Shahani have caused sharp side hatchet blows to hits on his head and face and other accused also caused hatchet blows on the other parts of his body. Constable Mehram Ali disclosed that accused Major Shahani has caused butt blows of KK to him on his hack and other parts of body. Constable Nizamuddin disclosed that his SMG of above mentioned number alongwith 2 magazines and bullets have also been taken away by the accused. Thereafter, we came to know that from accused side namely Gulab Shahani in firing has received injuries. Thereafter, we were brought at police station with the help of constable Ali Muhammad and other villagers. Complaint is lodged that above named all the accused in furtherance of their common intention while coming with intention to commit some offence have interfered in our legal duty and from their weapons with intention to kill us have straightaway fired and also caused sharp side hatchet blows to us and caused injuries and all the accused have also robbed from me SMO and 2 magazines of bullets and also SMG from constable Nizamuddin with 2 magazines of bullets. Complaint is lodged, investigation be made." Initially complaint was registered under various sections mentioned above except section 302, P.P.C., however later on due to the death of constable Nizamuddin, who succumbed to injuries on 22-7-2002, this section was also inserted in the challan. I have heard learned counsel for the applicant, he contends that the present applicant was arrested on 28-7-2002 and thereafter only his licensed gun was recovered by police on 3-8-2002. The only allegation against the applicant is that at the time of occurrence he was present at the place of occurrence duly armed with gun, however, even no allegations of firing have been attributed to him. Learned counsel further contends that prosecution story is belied from the tact that out of 13 nominated accused in the F.I.R. during police investigation, on the strength of statement of 22 witnesses examined by the Investigating Officer, six nominated accused namely, Yakoob, Qurban, Urs, Ali Gul, Mehboob and Fateh Ali were let off by the police though as per contents of F.I.R. two of them were assigned specific role of causing hatchet blows to Constable Nizamuddin, who later on succumbed to such injuries. Mr. Allah Bachayo, also contends that as per post-mortem report deceased constable Niazmuddin has sustained no fire-arm injury as all the injuries sustained by him have been certified to have been caused with hard and blunt substance. On the force of these submissions, he urged that the case of applicant needs further enquiry entitling him for the benefit of bail. Learned counsel placed reliance on the cases reported in 1996 SCMR 1654, 1999 SCMR 1320 and 1999 SCMR 1360. In the first case the accused, who allegedly kept on tiring and raising Lalkara at the time of occurrence but did not cause any injury to complainant party were admitted to bail. In the second case order of High Court cancelling bail of accused who had not caused any injury to the deceased was set aside and order of Sessions Court allowing bail to accused was restored. In the third case bail was allowed to the accused who was assigned role of ineffective firing and fatal injury to the deceased was attributed to co accused. with the observations that question of his vicarious liability would require further enquiry as contemplated under section 497(2), Cr.P.C. Mr. Anwar Ansari, the learned State Counsel did not dispute the contentions raised by Mr. Allah Bachayo Soomro which are even otherwise borne from the case record. However. he showed his reluctance in conceding to the bail plea of applicant. I have carefully considered the arguments and perused the case record. At this stage it is apparent from the record that the only role assigned to the applicant is that he was armed with gun and no other overt act has been attributed to him. As noted above the injuries caused to deceased constable Nizamuddin are not fire-arm injuries, therefore the case of applicant as regards to his vicarious liability also needs further enquiry, entitling him for the concession of bail. Accordingly the applicant is admitted to bail on his furnishing surety in the sum of Rs.2,00,000 (Rupees two lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court. N.H.Q./M-430/K Bail allowed.