2011 PLP 846 (YLR)

MUHAMMAD TASNIM, J.

The applicants Ali Hassan and Ali Sher are booked in Crime No.1 of 2008 of Police Station Phuloo for the offence punishable under sections 302 and 147, P.P.C. The prosecution story as set out in the F.I.R. is that on 16-10-2008 at about 1400 hours complainant Shafi Muhammad Jodh lodged the report that complainant cultivates the land of Naeem Ahmed Kharal. About 3/4 years back the cousin of Wazir Muhammad Jodh namely Hussain Bux Jodh was declared as "KaroKari" with the wife of Akber Jodh as such Akber Jodh had murdered his wife and Hussain Bux Jodh and such faisla was conducted by the Nekmards, whereupon the cousin of Hussain Bux namely Wazir used to remain annoyed and say that you had helped Akber Jodh and others and used to say that we will never spare you. Today morning I and my brother Allandino, cousin Sawan son of Wali Muhammad, maternal nephew Manthar son of Dhani Bux, altogether went for grazing our cattle in the forest and were grazing our cattle near Khali Waro Dubbo, when at about 1-00 p.m. we saw and identified accused each of (1) Wazir Muhammad having Kalashnikov (2) Ali Hassan son of Eidal having gun (3) Shah Nawaz son of Eadil having Kalashnikov (4) Ali Sher son of Rajib having Kalashnikov (5) Abdul Majeed son of Mehar having pistol, all by caste Jodh, r/o Kharalabad and one unidentified accused person having gun whom we saw very well, if seen again would be able to recognize him, out of them accused Wazir accosted and said to us to sit down today you will not be spared because you had helped Akber party in the faisla, due to scare of weapons we remained silent. My brother Allandino said to them that we had not helped Akber Party. On his saying so accused each namely Wazir Ali Hassan Shah, Nawaz and Abdul Majeed with intention of murder made direct fires at him which hit him, who raised cries and collapsed on the ground. On the fires arm reports my Marot Allah Wadhayo alias Ladho son of Daud, Jodh came running there. They also saw the accused persons and identified them. Thereafter all the accused persons escaped towards northern side. Thereafter we saw that my brother Allandino had fire-arm injuries on his right side, backside and he was dead. Then leaving the above named witnesses over the dead body for taking care now I appeared and report that the above named accused persons along with one unknown accused person, who has been seen very well, if seen again would be recognized in furtherance of their common object due to above annoyance have made fires and have killed my brother Allandino aged about 45/46 years. I am complainant, pray for redresser. Learned counsel for the applicant has submitted that as many as six persons namely Wazir Muhammad armed with K.K., Ali Hassan armed with gun, Shahnawaz with K.K., Ali Sher with K.K., Abdul Majeed with Pistol and one unidentified person armed with gun have been cited as accused persons. He further says that role of firing has been attributed only to Wazir Muhammad, Ali Hassan, Shahnawaz and Abdul Majeed but no role whatsoever has been attributed to Ali Sher. He further says that no recovery whatsoever has been effected from applicant Ali Sher. He further says that case of Ali Sher is require further enquiry in terms of subsection (2) of section 497, Cr.P.C. With regard to applicant Ali Hassan learned counsel says that he may also be admitted to bail as from the reading of the F.I.R. it is not clear as to which of the accused named above caused injuries to deceased Allandino. However, he admits that gun was recovered from applicant Ali Hassan. He, also admits that from the place of wardat empties of four K.K., three of gun and two of pistols were recovered. On the other hand learned A.P.-G. has not opposed the grant of bail to applicant Ali Sher. However, he has opposed the bail of applicant Ali Hassan, as according to learned A.P.-G. the specific role has been assigned to Ali Hassan who was armed with gun and he also caused injury to the deceased with his gun. He further says that three cartridges of gun were recovered from the place of wardat. He further says that said gun was recovered from Ali Hassan, hence he may not be admitted to bail. Learned counsel for the applicant has placed on record an order dated 13-1-2010, passed in Criminal Bail Application No.S-1105 of 2009; whereby a learned Single Judge of this Court had directed the trial Court to proceed with the matter expeditiously and concluded the trial within a reasonable time. The learned counsel for the applicant has further argued that since the court is vacant no proceeding had taken place before the trial Court inspite of above directions of this Court. In this view of the matter, he submits that learned Sessions Judge be directed either to proceed with the matter himself or to transfer this case on the file of some other Additional Sessions Judge in his District. I have heard the learned counsel for the parties and have perused the record. Since the bail has been conceded to Ali Sher by the learned A.P.-G. he is admitted to bail on his furnishing surety in the sum of Rs.100.000 (One Lac) and P.R. bond in the like amount to the satisfaction 1 of the learned trial Court. With regard to the bail of Ali Hassan it is observed that direct role has been assigned in the F.I.R. which has been fully supported by the statements of the P.Ws. in their statements under section 161, Cr.P.C. and medical report also supports the case of the prosecution. However, recovery of gun was also effected from Ali Hassan and empties of gun were also found at the place of wardat. In this view of the matter, the bail to Ali Hassan is denied. It is brought to the notice of the Court that accused persons were arrested by the police on 11-2-2009 and ever since they are behind the bars but trail is not proceeding before the trial Court. In the circumstances, the learned Sessions judge Khairpur is directed either to try this case himself or to transfer this case on the file of some other learned Additional Sessions Judge in his District for expeditious disposal of the case. Since it is an old matter it will be just and fair that trial is concluded within a period of four months from the receipt of this order. H.B.T./A-111/K Order accordingly.