2004 PLP 448 (MLD)

Muhammad Bachal Tonyo, Addl. A.‑G. for Respondent. The applicants Wazir Ali alias Jumo Abro and Sadar alias Sadroo are facing trial in Sessions Case No.290 of 2003, re: State v. Sadroo and others in a offence punishable under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 324, P.P.C. The above named applicants have filed separate applications being Criminal Bail Applications. Nos. 399 and 428 of 2003 as two separate bail applications were disposed of by the learned Sessions Judge, Larkana by an order dated 30‑7‑2003 and 1‑9‑2003. Both applications are being disposed of by a common bail order. The brief facts of the prosecution case are that on 3‑6‑2003 complainant Bashir Ahmed Suhag lodged his F.I.R. at Police Station, Ratodero stating therein that he is residing in village Taib. On 25‑4‑2003 a quarrel had taken place between Manthar Abro and Pervez Suhaq (the brother‑in‑law of complainant) on the matter of children and such case was registered against Pervez, Abdul Razak and others by Manthar Arbo. The accused Abdul Razak and Pervez are confined in jail whereas Manthar Abro and others were saying that they would take the revenge. The complainant party were walking in the street for Chowkidari purpose, Khuda Bux was armed with licensed gun and complainant was also armed with hatchet and they weee standing near the house of Uris Shaikh when at about 3 a.m. they saw and identified on the light of electricity 5 accused persons to be Sadar Abro having gun, Jumo Abro having hatchet, Imdad Jalbani having gun, Buxal Brohi having hatchat, Karim Bux Mirasi and one unidentified person having Lathies in their hands came there and at that time accused Sadar Abro challenged the complainant party that they will not be spared saying so accused Sadar Abro (applicant) in Criminal Bail Application No.S‑399 of 2003 gave butt blow to PW Khuda Bux on his head with intention to commit his murder. The complainant tried to intervene hut, co‑accused Buxal also inflicted back side of hatchet blow to complainant and accused Karim Bux inflicted butt blow of his gun on his head. The complainant party grappled with the accused and co‑accused Imdad Jalbani snatched the gun from PW Khuda Bux. The complainant party raised cries and on commotion one Deedar Ali Suhag and other villagers came at the spot, but accused person went away alongwith, robbed gun towards eastern side. The complainant took the injured Khuda Bur to hospital and lodged an F. I. R. After usual investigation, the charge sheet was filed in the Court having jurisdiction where the applicant Wazir Ali alias Jumo was shown as absconder and he voluntarily surrendered before the trial Court and sought pre‑arrest bail, but subsequently, on 6‑8‑2003 his interim pre- arrest bail was recalled and consequently the applicant was remanded to jail custody. The bail on behalf of the applicants/accused were filed separately and the same were disposed of on different dates of hearing and both bail applications came today for hearing as both are outcome of one F.I.R. and applicants had prayed for grant of bail in the above mentioned case. Mr. Muhammad Ayaz Soomro, learned counsel for applicants/accused has argued that there is enmity between the parties, which has been admitted in the F.I.R. and counter‑case has also been lodged being Crime No.81 of 2003 at the Police Station, Ratodero against the complainant party. It is further urged that no any overt act is attributed to applicant/accused Wazir Ali alias Jumo for committing the offence under section 17(3) and only it is alleged that he armed with hatchet, but he has not caused any injury to the prosecution witnesses. It is alleged that he was armed with hatchet and ingredient of section 324, P.P.C. does not attract against the applicant/accused and the applicant has no annoyance with the complainant party nor joined hands with the other co‑accused, as motive has been attributed to PW Khuda Bux. It is further alleged that the applicant/accused was shown as absconding accused iii the charge sheet, but no any proceedings under sections 87 and 88, Cr.P.C. were initiated. It is further alleged that the applicant/accused surrendered himself on 6‑8‑2003. It is further argued that presence of applicant/accused at the relevant time and place of incident is to be considered whether he has joined hands with the co- accused and case of applicant/accused calls for further inquiry. It is further urged by the learned counsel that co‑accused Sadar alias Sadroo had only inflicted butt to the gun of PW Khuda Bux and the injuries No.1 and 2 are defined as Shajah‑i‑Khalifa. Injured Khuda Bux was referred to medical examination on 8‑6‑2003 whereas the incident had taken place on 3‑6‑2003 and according to F.I.R., there is no allegation that he committed the offence for robbing the gun of injured Khuda Bux, but according to F.I.R., it is alleged that co‑accused Imdad had snatched the gun from PW Khuda Bux. Mr. Muhammad Bachal Tonyo, learned Addl. A.‑G has frankly conceded that according to the allegations contained in the F.I.R. and other investigation applicant Wazir Ali alias Jumo was armed with hatchet, but did not cause any injury to anybody nor robbed any property from the complainant party. It is also urged by the learned Addl. A.‑G. that although the Sadar alias Sadroo was armed with gun, but he had inflicted backside of the butt of the gun to PW Khuda Bux and injuries have been defined as Shajah‑e‑Khafifa. Learned Addl. A.‑G. has also conceded that the final medical certificate has been issued on 8‑6‑2003. According to the F.I.R. enmity between the parties is admitted and a counter F.I.R. has already been made against the complainant party and there is possibility of false implication between them and the false implication of each party cannot be ruled out. It is yet to be examined by the trial Court whether the applicant Sadar alias Sadroo shared his common intention while appearing at the scene of offence alongwith other co‑accused. The co‑accused Sadar alias Sadroo has caused butt injury to PW Khuda Bux, which has been opined as Shajah‑e‑Khafifa and he has not forcibly snatched the licensed gun from PW Khuda Bux. It is alleged in the F.I.R. that the gun was snatched by co‑accused Imdad Jalbani. In view of the foregoing circumstances, there are reasonable grounds for believing that the applicants/accused are not guilty of such offence by committing the Qalt‑e‑Amd of complainant party or to rob the gun from PW Khuda Bux. In view of this, the applicants are entitled for the concession of bail. Resultantly, I grant bail to the applicants/accused Sadar alias Sadroo and Wazir Ali alias Jumo in the sum of Rs. two hundred thousand each and PR bond in the like amount, to the satisfaction of learned trial Court. N.H.Q./S‑356/K Bail granted.