2004 PLP 814 (YLR)

The bail plea of the applicants for bail before arrest was declined by the learned Sessions Judge, Sukkur vide order, dated 6-3-2003. The prosecution story as unfolded in the F.I.R. is that on 15-4-2002 at 1-00 p.m. complainant Abdul Sattar Mahar appeared at Police Station, Khadhari and lodged an F.I.R. the details whereof are given as under:-- "Complaint is that I am related to one Bashir Ahmed Mahar, I had some dispute with them over the tethering of cattles and due to that reason we are annoyed with each other. I had one tractor, which was being played/driven by one driver Shamsuddin son of Gulzar Ahmed. My brother namely Abdul Jabbar also looks after the tractor alongwith driver. On the day of incident, in the morning time, my brother Abdul Jabbar, driver Shamsuddin and nephew Muhammad Yaseen son of Abdul Rahim had gone to take wooden bars of Abdul Hayee Mahar. When we were returning towards our village after completing our job, and at about 12-00 noon, when we reached near Shah Bello (Forest), we saw accused persons, (1) Ghulam Shabir, (2) Aqil, (3) Mangh, all the three sons of Yar Muhammad, who were armed with K.Ks, (4) Abdul Hameed with K.K. (5) Muhammad Ayub armed with gun, both sons of Maroof, (6) Walidino armed with pistol, (7) Shah Nawaz with K.K. both sons of Allah Nawaz, (8) Meeral alias Nakho armed with K.K. (9) Abdul Sami armed with K.K, (10) Abdul Rasool alias Daloo armed with K.K., all three sons of Abdul Rehman, (11) Asadullah son of Mahar armed with gun, (12) Basheer son of Walidino armed with rifle, (13) Qutbuddin, (14) Qamaruddin, (15) Abdul Hakeem, all three sons of Sobharo, (16) Ali Ahmed, (17) Lal Muhammad, both sons of Ali Sher, all armed with K.K. all caste Mahars, all resident of village Bindo Shah Bello, Taluka Pano Akil, were standing there. All the accused persons raised their arms and asked the driver Shamsuddin to stop the tractor, who due to fear stopped the tractor. Accused Shabir told us that your people have been fighting with us on the issue of cattle theft and now we will not spare you. Accused Shabir also tried to take away the key of the tractor from switch board, and on that we resisted. On our resistance, the accused Shabir fired from his K.K. towards my brother Abdul Jabbar, which hit him on his leg. Accused Shah Nawaz with the intention of murder fired at Muhammad Yaseen, which hit him on his foot, and other accused persons also fired at us, but we, due to fear lay down on the ground, and saved our-lives, and also remained quiet. The accused persons then took the driver Shamsuddin and tractor, alongwith them. After a little while, when the accused person moved, the accused Ali Ahmed and Qutbuddin fired from their K.K. and murdered Shamsuddin. Then the accused persons, took away the tractor. On the voice of the fire-arms, the persons came from village Hakim Mahar and with their help, I have come on the donkey cart and report that the accused persons duly armed with deadly weapons and in collusion with each other had murdered driver Shamsuddin, and had also injured Abdul Jabbar and Muhammad Yaseen and have also robbed our tractor. I am complainant, justice be done." Besides there is also a counter-ve rsion of this case, the details whereof are so reproduced hereunder:-- "Complaint is that Gullan and Abdul Raheem are relative inter se. They have some dispute over the tethering (tiding and untiding) of the cattles. On the day of incident i.e. 15-4-2002, I alongwith Gullan son of Maroof, and Nawab son of Maroof, and Nawab son of Yar Muhammad, all Mahar by caste, resident of Hussain Bello, Taluka Pano Akil, had gone for some work and to see Dargahs of saint's. When we were returning towards out village, and reached near Shah Bello (Forest) at about 12-00 noon, we saw accused, (1) Abdul Raheem armed with K.K., (2) Abdul Wahab armed with gun, both sons of Lal, (3) accused Ghulam Rasool son of Gulsher, armed with K.K., (4) accused Rasool Bakhsh son of Abdul Raheem, armed with gun, (5) Rasoolo son of Fateh, armed with gun, (6) Shakoor son of Jalal, armed with rifle, (7) Nazeer son of Shanoo, armed with gun, all by caste Mahars, all resident of Peer Masafir, Taluka Pano Akil, were standing there. Out of them, accused Abdul Raheem told Gullan that we will not spare you as we have the dispute over cattles. On this accused Abdul Raheem fired from his K.K., which hit Gullan near the left arm, who after raising the cries, fell down. Accused Abdul Wahab and Ghulam Rasool fired at me and one Nawab. The accused persons then after firing in the air went away and due to fear we fell down on the ground. I then went near the Gullan, who was oozing the blood from the injury, and died on the spot. I then with the help of the villagers, took the dead body of Gullan and went to his village for informing out Nekmard Abdul Sallam Mahar, but he was not present in his house. I waited for Nekmard, who came at about sunset time, and whom I narrated the entire facts. The Nekmard directed me to .go to Police Station Khadhari and lodge the report. Now I have come and report that the above named accused persons came and accused Abdul Raheem, due to enmity on the dispute of cattles, intentionally, armed with deadly weapons has murdered. Gullan and they have also fired upon us with intention to commit murder. I am complainant, justice be done." The investigation followed and in due course the applicants were sent up to stand trial in the Court of learned Sessions Judge, Sukkur whereas the remaining accused were shown absconding. I have heard the learned counsel for the respective parties and perused the record. It has been contended, by the learned counsel for the applicants that the case against them is false and they have been implicated in the background of enmity. It has also been contended that as far applicants Qutbuddni and Ali Ahmed are concerned they were disclosed to be armed with Kalashnikov and were alleged to have fired in the air. That as far remaining applicants namely Qamaruddin, Abdul Hakeem and Lal Bux are concerned they too were disclosed to be armed With Kalashnikovs and fired at the complainant party but the same did riot hit any body. It has further been contended that nothing incriminating has been secured from the possession of the applicants. It has also been explored by the learned counsel for the applicants that besides there is also a counter-version of this case which has been recorded as Crime No. 3 of 2002 registered at- the same Police Station Khadhari. It has also been argued that in the counter-case one of the person namely Sultan had died as a result of firing in between the parties. The case being of two cross-versions it is yet to be determined as to which party is aggressor and which is aggressed. That all the material eye -witnesses P. W. Jalaluddin, P.W. Muhammad Umar, P.W. Nazar Muhammad P.W. Abdul Sattar and P.W. Sodho in their 164, Cr.P.C. statements did' not support the case of prosecution. That the involvement of the applicants in the false case of this nature is due to mala fide and ulterior reasons on the part of police is in collusion with the complainant party as they have been motivated at the instance of S.H.O. That womenfolk of the applicants were arrested from houses and were taken to Police Station where they were detained and disgraced at the police station at the instance of the complainant party. Learned counsel in that eventuality placed reliance on the following case-law in support of his contentions:-- (1) Amir v. State PLD 1972 SC 277; (2) Mst. Shafiqan v. Hashim Ali and others 1972 SCMR 682; (3) Muhammad Shafi v. Hakim Ali 1978 SCMR 346; (4) Ghulam Farooq and another v. State PLD 1989 Kar. 37; (5) Zaheeruddin and others v. State PLD 1990 SC 959; (6) Shaheeb Mahmood Bhutt v. Iftikharul Haq 1996 SCMR 1845; (7) Ibrahim and others v. State 1997 PCr.LJ 762; (8) Maqsood Ahmed v. State 1997 PCr.LJ 834; (9) Awal Gul and another v. State 1999 PCr.LJ 1731; (10) Muhammad Sadiq v. Tariq Mahmood 1999 SCMR 2621 and others; (11) Muhammad Murad v. State.2002 PCr.LJ 1051 and (12) An unreported case in Criminal Bail Application No. 501 of 2002 decided by this Court. As against the arguments submitted by the learned counsel for the applicants Mr. Sher Muhammad Shar, A.A.-G. has raised no objection for the confirmation of bail as the two investigating agencies in their findings have disclosed that the applicants were not responsible for commission of crime and in view of the legal and factual position the applicants were let off by the police under section 497, Cr.P.C. but in the second thought they were joined as an accused to face trial. I have given my anxious consideration to the arguments advanced by the learned counsel for the respective parties and am of the considered view that learned counsel for the applicants, has been able to make out a case for bail. By an order, dated 1-8-2002, the applicants were granted interim bail and above are the reasons for its confirmation. Criminal Bail Application No.389 of 2002 stands disposed of. N.H.Q./Q-39/K Bail allowed.