2001 PLP 2143 (YLR)

Date of hearing: 22nd December, 2000. This bail application has been moved for grant of bail by two ladies namely Mst. Rehana and Mst. Zulekhan involved in Crime No. 137 of- 2000 under section 337-L(i), 337(v); 336, Qisas and Diyat Ordinance, 324, 147, 149, 324, 504, P.P.C. Police Station Hala, District Hyderabad. The facts mentioned in the F.I.R. lodged by complainant Ahmed Ali on 30-10-2000 at 15-45 hours in Crime No. 137 of 2000 Police Station Hala are that the complainant has purchased a portion of property from one Rehm4tullah and Almi in Chaki Para New Hala in the year 1992, but Khuda Bux the brother of the seller named above refused to hand over the possession against which the complainant moved applications to concerned authorities and subsequently with the help of his brother Rabdino alias Makhmoor Miranpnri he succeeded in getting the possession and also raised a partition wall. According to complainant they and Khuda Bux were annoyed to each other on this court. Before the day of incident Khuda Bux is said to have phoned Makhmoor to come to his house so as to shun the differences and to solve certain other problems. Again at 9-00 p.m. Khair Muhammad son of Khuda Bux also made a phone call to the said Makhmoor. Accordingly at 10-00 p.m. Makhmoor alongwith his friends Muhammad Ayoob, Kirir and Inayat Hussain reached Hala at 11-15 p.m. The complainant was informed by Muhammad Ayoob that Makhmoor has been injured because Khuda Bttx etc. has thrown acid on him and he was being brought at Taluka Hospital. The complainant reached there and saw that his brother Makhmoor has injuries on his face, head and other parts of the body. According to complainant the injured informed him on inquiry that when he reached the house of Khuda Bux at 10-45 p.m. Khuda Bux Memon, his wife Mst. Zulekhan, Aijaz, his wife Mst. Rehana, Khair Muhammad, Shahid, Jamil and Khuda Bux were available at 11-00 p.m. while they were discussing and he was asked to tell Aijaz not to quarrel with his wife. On this Khuda- Bux while abusing him stood up held the injured from his right arm, his wife Mst. Zulekhan held him from another arm, and in a planned manner Aijaz threw acid on his face, head and other parts of the body. When he tried to get out he was beaten by Khair Muhammad, Shahid, Jamil and Rehana closed the door. He forcibly opened the door and came out. After lodging of the F.I.R. the case was challaned. The bail application moved before the trial Court was rejected vide order, dated 13-12-2000 hence this bail application. I have heard the learned counsel for the applicant and Mr. Muhammad Azeem Panhwar learned counsel for the State. Learned counsel for the applicant submits that the F.I.R. has been delayed and there is no explanation for such delay. The incident took place in the house of the accused persons and the presence of the injured during odd hours of the night in the house of accused persons was mysterious. Learned counsel further contended that the allegation of throwing the acid was only against the accused Aijaz. He further submits that both the ladies who are applicants are mother and daughter. The applicant Rehana is pregnant with 9 months while the applicant Zulekhan has a suckling baby aged about one year and other minor kids also. Learned counsel for the State has stated that the statement of the injured under section 161, Cr.P.C. was recorded on 6-11-2000, whereas the statements of other P.Ws. were recorded on 3-11-2000, He further submits that the punishment provided for the offence under sections 324 and 336, P.P.C. was 10 years respectively which falls within the prohibitory clause of section 497, Cr.P.C. Learned counsel for the State, however, does not oppose the grant of bail to the applicant Mst. Zulekhan. I have given due consideration to the arguments advanced by the learned counsel and have also gone through the police papers. The explanation regarding the presence of the injured at the house of the accused persons in the company of two other persons, who were waiting outside, the house in a car during the odd hours of the night does not appear to be plausible. The version given in the F.I.R. according to the complainant was based on the story narrated by the injured himself. The medical certificate produced oil the record even does not show that the injured was unconscious or unable to record his statement. Even then his statement was recorded on 6-11-2000 admittedly after six days after lodging the F.I.R. The statements of the other P.Ws. were also recorded on 3-11-2000 after three days of the lodging of F.I.R. I would refrain from discussing the veracity of the statements recorded under section 161, Cr.P.C. as that may prejudice the case of either party at the stage of trial. However, it can safely be held that the late recording of 161, Cr.P.C. statements of the prosecution witnesses has reduced its value to nil as there is no plausible explanation for such delay. The reference can be made to the case of Abdul Khalique v. The State 1996 SCMR 1553. The roll attributed to applicant Zulekhan is that she held the injured from his arm, whereas role attributed to applicant Rehana is that she closed the door after the throwing of acid has already taken place. There is no direct role attributed to the applicants. It is evident from 161, Cr.P.C. statement of the injured himself that applicant Rehana is in the advanced stage of pregnancy whereas the applicant Zulekhan has a suckling baby aged about one year. The case of the two applicants calls for further inquiry, and in the circumstances, there is no justification to keep them behind the bars. For the foregoing reasons I direct that the applicant. Mst. Zulekhan and Mst. Rehana be released on bail on furnishing surety in the sum of Rs.2,00,000 (two lacs) and P.R. bond in the like amount to the satisfaction of the trial Court. These are the reasons for the short order announced today. H.B.T./R-48/K Bail granted.