2009 PLP 25 (YLR)

FARRUKH ZIA G. SHAIKH, J.

Applicants Wali Muhammad and Kambar have filed this Application under sec tions 497/498, Cr.P.C. seeking bail, who are wanted in F.I.R. Crime No.73 of 2008 registered at Police Station, Dubbar, District Sukkur for offences under sections 302, 324, 114, 147, 148, 149, 337-H(2), P.P.C. and 13-D of Arms Ordinance. Succinctly, the facts are that the case was initiated on an F.I.R. lodged by complainant Muhammad Nawaz on 19-10-2007 stating therein that he has 250 acres of an agricultural land in Deh Bhiro, which he himself used to look-after. He along with Lashkari Jatoi, Shahan Shar, Farooq Mangrio, Ali Sher Mangrio and Abdul Karim Phulpoto was irrigating the land and constructing the water course. There is a dispute going on between Complainant and accused Sache Dino and Shahamir over the land. It is alleged that when the Complainant party was busy in doing work in the land, at 7-30 a.m. accused Sache Dino empty handed, Shafi with hatchet, Shahmir, Dilsher Gulsher, Ali Sher, Kambar (Applicant No.2), Phul, Sheru with guns, Nisar Khuda Bux, Imam Bux, Wali Muhammad (Applicant No.1), Walidad, Haji, Panjal, Qasim, Mumtaz and five other unknown persons whose faces were open, with rifles came there. On the instigation of accused Sache Dino all the accused made straight fires upon the Complainant party, which resulted in death of two persons namely Lashkari Jatoi and Shahan Shar Haris of the complainant. Hence the above F.I.R. was lodged. Mr. Maqbool Ahmed Awan, learned Counsel appearing on behalf of the applicants argued that there is a dispute going on between the parties over the land and that in order to occupy an area of land lying within 20 chains, which has been left by the Government for ASAISH purpose, complainant hired notorious persons from his, village and other villages, who resorted firing upon the applicants and others and the applicants party in order to save their lives and property also made firing upon the complainant party, in which two persons Lashkari and Shahan have lost their lives. He submitted that applicants party had also lodged an F.I.R. bearing Crime No.74 of 2007 at same Police Station on the same day at 1300 hours as in the said firing one Chanesar (uncle of Applicants party) lost his life and their witness Sachal and Gulsher also sustained fire-arm injuries. He further submitted that thirteen persons duly armed with weapons, are shown in the F.I.R. against whom there are general allegations levelled by the complainant party that they fired upon the complainant party but it is yet to be determined as to who caused fatal injuries to the deceased persons, who was aggressor and who is the victim of aggression. In the last he argued that on the basis of old enmity over the land, false implication of the present applicants cannot be ruled out and requested for their release on ball as their case calls/further enquiry as contemplated within the meaning of section 497(2), Cr.P.C. In support of his contention, he relied upon Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845, Zafar Iqbal v. The State 1999 PCr.LJ 1840, Muhammad Murad v. The State 2002 PCr.LJ 1051, Muhammad Nawaz v. The State 2008 PCr.LJ 755, Muhammad Ismail and another v. The State 2008 YLR 47 and UC of this court in Cr.B.A. No.S-82/2004 Re. Noor Nabi and others v. The State in which bail was granted to the accused. On the other hand Mr. Muhammad Iqbal Mahar, learned Assistant Advocate General Sindh, appearing on behalf of the State, opposed to the grant of this Application. While defending the State, he argued that this is a double murder case, that the Applicants are named in the F.I.R., that they were armed with guns and specific role of firing at the complainant party, has been attributed to them, which resulted in death of two persons, that medical report fully supports the prosecution version, therefore the Applicants are not entitled for the concession of bail. Heard the arguments of Mr. Maqbool Ahmed Awan, learned Counsel appearing on behalf of the Applicants as well as Mr. Muhammad Iqbal Mahar, Assistant Advocate General Sindh appearing for the State and with their assistance, I perused the material available on record. According to the F.I.R., it is an admitted position that there is a dispute between the parties over the agricultural land, on which, this incident has taken place. There are counter cases between the parties with regard to the same incident, in which, two persons have been murdered from Complainant side and one person has been murdered and two persons have been injured from Applicants side and both the parties claim that other party was aggressor. At this stage all these points cannot be properly thrashed out as it requires deeper appreciation of evidence to prove each assertion and that has to be scrutinized at the time of trial. Thus, the case requires further enquiry as contemplated within the meaning of section 497(2), Cr.P.C, therefore, the applicants are entitled for the concession of bail. The case law cited by the learned Counsel for the applicants fully supports the case of applicants. The learned Counsel for the applicants also referred to above an U.C. of this Court in Cr.B.A.No.S-82/2004, in which, on similar facts and circumstances, the bail was granted to the accused. For the what has been discussed above, applicants are admitted to bail subject to furnishing surety in the sum of Rs.2,50,000 (Rs. two lac and fifty thousand only) each and P.R. Bond in the like amount to the satisfaction of learned trial Court. Above are the reasons for my short Order, dated 28-10-2008, whereby I had allowed this Application and granted bail to the applicants. Application stands disposed of in the above terms along with listed Application. H.B.T./W-14/K Bail granted.