1997 P Cr (PLP)

Sardar Muhammad Ishaque for Applicant. M.M. Vassu for the State. The learned Advocate for the applicant submits that the F.I.R. in this case %vas registered on 31-7-1995 at 7-30 a.m. at Police Station Sujawal for offence under sections 459 and 34, P.P.C. The complainant Moulay Dino has stated in the F.I.R. that at about 1-00 O 'Clock he heard barking of dogs and he woke up. He flashed the torch and saw two persons in front of cattle-pen untying the bullocks. He raised cries, which attracted his brother Sahib Dino, Ghulam Qadir and others. On light of torch they saw that the faces of culprits were not muffled and they identified them as Pir Bux alias Lala who was armed with hatchet and the other culprit had clubs in his hand. Pir Bux inflicted sharp side hatchet blow to Sahib Dino on his neck and gave blunt side blow on back. The other culprits ran away towards South. They found one black rubber Chappal, one hatchet and one purse with coloured cover, one identity card was found in the purse and it belonged to Pir Bux son of Allah Bachayo. It is mentioned in the F.I.R. that the two bullocks were recovered from the thief. The learned Advocate for the applicant has requested for bail on the ground that the incident had not taken place inside the house as is clear from the order of the Sessions Judge, dated 14-9-1995 and he refers to page 2 of the orders which is as under:-- "Perusal of the police papers viz. Mashirnama of place of Wardat created doubt whether the incident had taken place, which is surrounded with the hedge or wall or in open place. Therefore, Investigating Officer was summoned who appeared in the Court and clarified that the place of Wardat was situated in front of the house of the complainant. Surrounded with hedge where P.W. Sahib Dino had allegedly received hatchet blow." The learned Advocate for the applicant submits that section 445, P.P.C. describes six situations which make out case of trespass and lurking house- tresspass. It is alleged that applicant was armed with hatchet and he caused injuries to Sahib Dino but the other accused ran away. Applicant was arrested on 5-8-1995. He produces certified copy of the challan to show that the Medical Officer is not shown as a witness which fact suggests that no person had received any injury. He submits that nothing incriminating has been recovered from the applicant as hatchet was found lying on the ground. He submits that identification is not reliable piece of evidence as accused is said to have been identified in torch light. He relies on decisions reported in 1970 PCr.LJ 633 and PLJ 1973 Lah. Cr.

467. Apart from this he submits that in identical case, bail was granted and he relied on decision reported in 1988 PCr.LJ 1273. The learned State Counsel submits that the applicant had committed offence punishable under section 459, P.P.C. which is punishable with imprisonment for life or 10 years. Applicant is alleged to have caused injuries to brother of complainant named P.W. Sahib Dino with his hatchet. His identity card was also found on the spot and therefore, his complicity in the alleged offence is proved. The learned State Counsel was asked to produce the medical certificate of injured Sahib Dino if it h available in police papers because the certified copy of challan shows that Medical Officer is not a witness. On this learned State Counsel conceded that medical certificate is not available in police papers. Even the order of learned Sessions Judge, Thatta is silent on the point as to what type of injury was suffered by P.W. Sahib Dino. As there is no medical certificate and the complainant himself does not say in the F.I.R. that he had taken Sahib Dino to hospital or to Medical Officer, it can be said that the statement of complainant that P.W. Sahib Dino suffered injuries is not a correct statement on point of injuries to P.W. Sahib Dino. As no injury has been caused to anyone, the provision of section 459 will not be attracted. The complainant has mentioned in the F.I.R. that the two oxes were already there and that means only an attempt was made to take away the bullocks. In view of admitted facts the picture that emerges is that the complainant party has suffered no loss at all. No injury was suffered by any person from side of complainant and no loss of property has occurred. The availability of identity card of applicant at the time of incident requires further enquiry. I, therefore, grant bail to applicant, subject, to furnishing of surety in the sum of Rs.70,000 and P.R. bond in the like amount to the satisfaction of the trial Court. N.H.Q./P-335/K Bail granted.