2001 PLP 1639 (YLR)

Ali Azhar Tunio, Asstt. A.-G for the State. Date of hearing: 1st March, 2001 Present applicant is seeking bail in Crime No. 29 of 2000 registered with Police Station Hali Road on 10-6-2000 by complainant Noushad Ali son of Shamshad Ali resident of House No.22, Makrani Muhallah. Hyderabad who has been sent up to face trial under section 302, Qisas and Diyat Ordinance read with section 34, P.P.C. According to the case of the prosecution on the day of incident children including Irshad, deceased, and Shahbaz, present applicant, were playing in Muhallah and accused namely and respectively Gul Nawaz, Ali Nawaz and Zubair also came there and they caught hold of deceased Irshad son of Shamshad. The present applicant, who is seeking bail caused blow on the head of deceased Irshad with- brick which resulted in his unconsciousness and fell down on ground and thereafter accused made their escape good. According to the complainant on such information he came at the place of wardat, removed injured in unconscious condition to hospital and where it was disclosed by doctor that injured Irshad has expired and after that the report was registered. It is claim of the prosecution that four accused have participated in the crime but police had submitted challan dated 28-6-2000 wherein three co-accused namely and respectively Zubair Ali, Ali Nawaz and Gul Nawaz have been placed in Column No.2 with opinion that they were not available at the place of wardat whereas the present applicant has been sent up to face trial. I have also examined the contents of challan copy wherein it is stated by the police that during investigation it was transpired that the scuffle took place between Shahbaz and others with Irshad Ali and during scuffle and fight the deceased Irshad Ali fell down and on account of falling on the ground his head hit the bricks and he became unconscious and thereafter he expired. According to the police the accused is aged 14/15 years and he has not committed the murder of Irshad intentionally and it is an accidental case as during playing such occurrence has taken place. Police have also placed the co-accused in Column No.2 as submitted supra while the police have submitted challan which reveals that the case of the present applicant is falling under section 319 of the Qisas and Diyat Ordinance as accidental case. Learned counsel for the applicant has also placed on record the affidavits of the witnesses of the locality namely and respectively Muhammad Saleem son of Muhammad Saleh and Sahib Khan son of Muhammad Ishaque. He has also placed on record school leaving certificate of the applicant which reveals that he was born on 5-12-1984 which leads to inference that he is aged about 16 years and is minor. Learned counsel for the State has opposed to the grant of bail with contention that specific role is assigned to the present applicant and such injury caused on the head of the deceased is being supported by medical evidence and has opposed to the grant of bail. When asked as to why the three co-accused have been left off when it is claim of the prosecution that they were available at the time of wardat, learned counsel for the State replied that certainly they were not available and it is only the present applicant who has caused blow on the head of deceased which resulted in his death. Learned counsel for the State has not been able to confront with the query of this Court as to why in challan the same police who had recorded the contents of the F.I.R. has opined that the case of the present applicant is falling at the most under section 319 of the Qisas and Diyat Ordinance and it is accidental death and deceased fall on the ground during scuffle amongst children and his head was hit with the bricks lying on the ground and who subsequently expired. I have considered the arguments rendered by the learned counsel for the parties and have gone through the contents of the challan copy and the impugned order. Admittedly Irshad Ali has sustained injury on his head by brick but the contents of the challan copy reveal that there was scuffle amongst children during play and during scuffle the deceased fell down on the ground and on the ground the bricks were lying and his head was hit to bricks and subsequently deceased became unconscious and then died, although the medical evidence is being supported on this factum but as per the contents of the challan the police opined that the deceased fell down on the ground and his head was hit to the bricks/stones which were lying on the ground. As far as the medical evidence is concerned that has supported that the deceased sustained injury of brick. Moreover, learned counsel for the State has not been able to controvert the contents of the challan copy wherein it has been mentioned by the police that the contents of F.I.R. have been concocted by the complainant party and the offence at the most is falling under section 319 of the Qisas and Diyat Ordinance and it is accidental case although challan has been submitted under sections 302 and 319 of the Qisas and Diyat Ordinance read with section 34, P.P.C. I have carefully gone through the contents of the documents particularly contents of the challan copy and apparently the case appears on borderline whether the offence would fall under section 302 of the Qisas and Diyat Ordinance or 319 of the Qisas and Diyat Ordinance. If the version of the prosecution is believed that the brick was hit on the head of deceased by the present applicant, the prosecution is gagged on the question that the same has not been repeated by the present applicant but the version of the complainant is even belied by the police while submitting challan in which police have categorically submitted that during playing by children in Mohallah there was scuffle and deceased fell down and sustained injury of bricks which were lying on the ground and at the present it is yet to be thrashed out by the trial Court as to whether the deceased died due to injury of bricks lying on the ground or whether it was thrown by the present applicant. In view of the fact that police have submitted challan by saying that it is accidental death and offence is falling under section 319 of the Qisas and Diyat Ordinance, at the moment the prosecution itself has caused dent in its version and case appears to be on borderline and becomes a case of further inquiry. I am of the considered view that the prosecution itself has injected the elements of suspicion and dent in its version and the matter calls for further inquiry which falls under section 497(2), Cr.P.C. and all these things are to be thrashed out by the trial Court at the time of trial. The present applicant has been able to make out a good prima facie case for grant of bail and accordingly he is granted bail in the sum of Rs.100,000. (Rupees one lac only) with P.R. Bond in the like amount to, the satisfaction of the trial Court. H.B.T./S-136/K Bail granted.