1997 PLP 1470 (MLD)

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S. 302/337‑A(i),(ii)/337‑H/379/ 148/149‑‑‑Bail, benefit of doubt‑‑‑Law for the purpose of bail is not to be stretched in favour of prosecution and benefit of any doubt arising in the case must go to the accused. ‑‑‑[Benefit of doubt]. Abdul Fateh Malik for Applicants. Nidamuddin Brohi for Addl. A.‑G. Applicants Amanullah and Gujoo seek bail in Crime No.70/95 of P.S. Ghouspur, District Jacobabad for offence registered under sections 337‑A(i), (ii)337‑H, 379, 148 and 149, P.P.C. The facts forming prosecution are that on 28‑10‑1995 complainant Muhammad Nawaz lodged F.I.R. mentioning therein that complainant party is contractor of fishing rights in Government pits in Deh Mangi of Ghouspur Defend Band. From the above pits Ali Bux Oghi and others used to commit theft of fish for which they were prohibited to do so previously but were still committing the theft. On the day of incident complainant and his brother Muhammad Ramzan went to look after the fish pond in the above pits and found Amanullah, Gujoo and accused Brohi Oghi taking away the fish and on their following them applicant Amanullah caused blow from the blunt side of the hatchet upon the head of Ramzan brother of complainant and applicant Gujoo and co‑accused Brohi inflicted him Lathi blows on the head and other parts of his body. Complainant's intervened but he was also inflicted Lathi injuries. Complainant's brother Muhammad Ramzan fell down and became unconscious after sustaining injuries. On the cries of complainant, brother Ali Nawaz relative Mehar, Allah Wadhayo and Ali Akbar Mirbahar came running whereas from the side of accused persons namely Ali Bux, Kaloo and Shahban with guns, Kamal, Jamal, Mehwal with Lathis came there while giving Hakals, and inflicted injuries to complainant, brother Ali Nawaz, nephew Mehar, and relative Allah Wadhayo and Ali Akbar with Lathis and hatchets. Accused with guns fired in air and on the Hakals and fire reports many persons from village came running. Seeing them coming the applicants and co‑accused went to their houses. During fight complainant party received injuries from blunt side of hatchet and Lathis over head and other parts of the body. Police arrested applicants Amanullah, Gujoo and co‑accused Ali Bux, Kamal, Jamal, Mehwal, Kaloo, Shahban and Haboo alias Habibullah and let off and released all the other accused excepting applicants, finding them innocent and simply challaned applicants and one Brohi showing him absconder before Court of law under other section amongst 302, P.P.C. as injured Muhammad Ramzan succumbed to the injuries. Bail application was filed on behalf of applicants before the Court of learned IInd Additional Sessions Judge, Kandhkot which resulted in dismissal and therefore this application. Applicants' counsel argues that F.I.R. becomes doubtful and its credibility is shaken and is found to be false in respect of majority of accused by police during investigation. According to him accused Ali Bux, Kamal, Jamal, Mehwal, Kaloo, Shahban and Haboo alias Habibullah have been let off during investigation and are not challaned though they are nominated with specified role of causing injuries to complainant and other accused. In this respect Mr. Abdul Fateh Malik refers that injured Mehar, Ali Akbar, Ali Nawaz and Allah Wadhayo have stated in 162, Cr.P.C. statement recorded by S.I.P., C.I.A., Jacobabad that the offence is committed only by applicants Amanullah, Gujoo and co‑accused Brohi, and co‑accused Ali Bux, Kaloo, Kamal, Jamal, Habu alias Habibullah and Shahban are innocent and their names were not given by complainant but were included by S.H.O. himself at his own accord. Not only this but counsel states that all those P.Ws. have stated same facts in 164, Cr.P.C. statements recorded by Mukhtiarkar and F.C.M., Jacobabad. He further states that nothing incriminating has been recovered from the place of Wardat including empty cartridges or the theft property so the very happening of incident requires serious consideration. He lastly submits that from the contents of F.I.R. incident seems to be a sudden flare up and there is neither pre‑planning nor premeditation seen on the part of applicant for committing the offence. He refers case‑law reported in 1982 SCMR 955, 1995 P.Cr.L.J. 1275 and 1996 PCr.LJ 783 in support of his pleas and requests that the allegations against applicants require further enquiry and concession of bail may kindly be extended to them. Mr. Nidamuddin Brohi appearing on behalf of Addl. A.‑G. opposes to the grant of bail to the applicants stating that the ocular evidence as put forth by prosecution against the applicants is supported by the medical evidence and the evidence of recovery of hatchet and Lathi. The arguments advanced by applicants' counsel in my opinion carry sufficient weight as the very sanctity of F.I.R. becomes questionable in view of finding majority of accused namely Ali Bux, Kamal, Jamal, Mehwal, Kaloo, Shahban and Habu alias Habibullah false during investigation though they are specifically nominated in F.I.R. with specific role of causing injuries to complainant and other P.Ws. From the perusal of police papers it transpires that S.I.P., C.I.A. Jacobabad has not only recorded further statements of complainant Muhammad Nawaz, but has also recorded statements under section 162, Cr.P.C. of P.Ws. Mehar, Ali Akbar, Ali Nawaz and Allah Warayo in which all of them have clearly stated that they have neither nominated accused Ali Bux, Kamal, Jamal, Shahban, Mehwal and Habu alias Habibullah in F.I.R. nor in any statement before police and their names are included by S.H.O. at his own accord. Non‑recovery of theft property and empty cartridges from place of Wardat makes an additional ground for consideration the question of grant of bail in respect of applicants. Hon'ble Supreme Court in a case of Amjad and another v. The State 1982 SCMR 955 has mainly granted bail to the accused on the point of majority of the accused being found false. Irrespective of the above arguments, from the F.I.R. it is clear that it was not only on that day that applicants had gone to commit theft of fish but they usually use to commit theft of fish from the pits in contract of complainant and also using of the hatchets from its blunt side further shows that applicants had no intention to kill Muhammad Ramzan. In case of Maulana Ataul Mohsin and 4 others v. The State 1995 PCr.LJ 1276 this Court granted bail to the accused under the similar circumstances. In case of Shamon Jatio v. The State (1996 PCr.LJ 783) Division Bench of this Court allowed him bail on the benefit of doubt. So also law for the purpose of bail is not to be stretched in favour of prosecution and benefit of any doubt arising in the case must go to the accused. In my opinion the allegations against applicants require further serious consideration and for the present their case requires further enquiry as envisaged under subsection (2) of section 497, Cr.P.C. They are allowed bail. They may be released on bail on their furnishing surety in the sum of Rs.1,00,000 each and P.R. bond in the like amount to the satisfaction of the Trial Court. N.H.Q./A‑63/K Bail allowed.