1998 P Cr (PLP)

Vide order, dated 16‑2‑1998, present application was dismissed with directions to the learned trial Court to examine the complainant within a period of two months from 16‑2‑1998, whereafter it was directed to be open for the applicants to repeat their application for bail. Following arc reasons of the short order of dismissal. Briefly the facts of the case re that the applicants have sought bail in respect of a pending trial bearing Sessions Case No.240 of 1996 before the Court of the learned Additional Sessions Judge, Sanghar, who had dismissed the application of bail vide order, stated 4‑I 1‑1997. The F.I.R. of the incident under section 302‑324, P.P.C. (as amended by Qisas and Diyat Ordinance) read with section 114, P.P.C. was registered on 20-10-1996. which was lodged by .one Khuda Bux, wherein he stated that he and his brother Haji Sideman are cultivating their land through their Haris which land was purchased by them from Ghulam Hussain Mughal. The land was about 106 acres and 15 days prior to the incident, the entry in the Revenue Record was accordingly made. It was stated in the F.I.R. that they have got 60 acres of other' land of Ghulam Hussain on lease for about one and a half years, which had been sold by Ghulam, Hussain Mughal to Bhiro Khaskheli but no mutation was made till that point of time Bhiro Khaskheli has got the said leased land ploughed for cultivation 'it has further been stated in the F.I.R. that on 29‑10‑1996 in the morning time the turn of the water of the complainant's land was completed while the water of leased land was continuing which, in fact, was stated to have been changed by Janoo, Bhiro, Hakoo and Yar Muhammad at 6 O'clock. Complainant and his brother Haji Suleman were stated to have gone for a round oft their land at about 11 O'clock Janoo and Yar Muhammad armed with hatchets, Hakoo with spade and Bhiro who was empty‑handed are stated to have met them at the watercourse, on which the complainant's brother Haji Suleman had said that settlement of change of water of leased land has not yet been held with Ghulam Hussain Mughal, as such, they would have not changed the turn of water, on which Janoo and Yar Muhammad are stated to have exchanged hot words. The F.I.R. further reveals that during the exchange of hot words Bhiro had instigated others, not to spare, on which Janoo is alleged to have caused hatchet with sharp side to Haji Suleman on his head, while Yar Muhammad had caused blunt side of hatchet on the head and other parts of the body of Haji Suleman and Hakoo had given spade injuries with sharp side on the head and later on the complainant Khuda Bux had raised cries while Haji Suleman after receiving injuries fell down and went unconscious. Murad Ali Shar and Mangiladho reached on hearing the cries, while the accused were stated to have gone away with their weapons. Complainant alongwith Murad Ali Shar and Mangiladho Machhi had taken the injured to the police station where the F.I.R. was lodged. Haji Suleman was hospitalized and then was referred to Liaquat Medical College Hospital where he expired. The investigation was undertaken and the present applicants were sent up to face trial. The contention of the: learned counsel is that Bhiro was not challaned by the police at whose instance the attack was lodged whereas Hakim is stated to have been granted bail by the learned trial Court. It has been further contended by the learned counsel for the applicants that there is no injury on the head of the deceased of the back side of the hatchet and the version given in the F.I.R does not coincide or for that matter fall in line with medical evidence because medical evidence only reflects one incised injury on the head of the deceased Haji Suleman. At best, there were two bruises reflected in the medical report and in 'the event ocular evidence not falling in line with medical evidence, the case against the applicant was canvassed before me to be a case of further inquiry. Upon examining the medical record which reflected sharp‑edged incised wound on the head of the deceased which according to the ocular evidence was inflicted by Janoo, the learned counsel for the applicants was asked in so far as Janoo is concerned would he press the bail of applicant Janoo The learned counsel fairly conceded that he does not press bail application for Janoo but insisted that the case for bail in respect of Yar Muhammad is made by placing his reliance on Syed Abdul Baqi Shah v. The State 1997 SCMR

32. Reliance has further been placed on 1997 PCr.LJ

943. Mr. Iftikhar Ahmed, learned counsel for the complainant has canvassed before me that this is a case where element of common intention under section 34, P.P.C. cannot be ruled out and is fully applicable as the applicant had come armed with their hatchets and fully prepared at the place of incident and for that matter, the blunt side injury is reflected in the medical report and punishment provided for the alleged offence falls within the prohibitory clause as such bail was resisted b) the learned counsel for the complainant. Mr. Anwar Ansari, Advocate for the State has also opposed the grant of bail to the applicant Yar Muhammad and has invited my attention to the three injuries which are so reflected in the medical report which are as follows:‑‑ "(1)????? Incised wound 20 c.m. x 3 c.m. x brain deep on right partieto occipital region of skull. (2)??????? Bruise 12 c.m. x 2 c.m. on the back side of right chest. (3)??????? Bruise 12 c.m. x 2 c.m; on right lumber region." Upon considering the contentions raised before me on behalf of the applicants, complainant and the learned State Counsel, it would be seen that delay in the lodging of the F.I.R. has been fully explained and appears to be reasonable and furthermore, all the applicants were mentioned ascribing to them specific role and upon consideration of the medical evidence no contradiction appears to be available, if examined in juxtaposition with the ocular evidence. At least, in so far as the applicants before me are concerned specific role of causing injuries with hatchets over the parietal region of skull of deceased Haji A Suleman and also other parts of the body has been made and, therefore, it would be hard to believe that both the applicants did not share common intention for committing Qatl‑i‑Amd of deceased Haji Suleman. In so far as the case‑law having been relied before me, all that can be said at this stage is that the case of the applicants does not fall within the scope of further inquiry as contemplated by subsection (ii) to section 497, Cr.P.C. The learned Trial Court has distinguished the present case with the reported orders placed before itself as well as before me. It was in these circumstances that the aforementioned short or dc I A as announced by me, reasons of which are recorded hereinabove and the learned trial Court would examine the complainant within a period of two months from 16‑2‑1998, whereafter it would be open to the applicants to repeat their application. Reasons recorded accordingly. H.B.T./J‑27/K????????????????????????????????????????????????????????????????????????? Bail application dismissed.