2012 SCMR 1955 (PLP)

SARMAD JALAL OSMANY, J.

This Petition impugns the Order of the learned High Court of Sindh in Criminal Bail Application No.124 of 2012 filed by the petitioner whereby bail was refused to him.

2. Briefly stated the facts of the matter per the F.I.R. are that while the complainant and his brothers Shafi Muhammad and Aziz Kaloi were present inside their house at 5-30 p.m., accused Haider Bux and Rasool Bux armed with repeaters and accused Pir Bux armed with a hatchet appeared and they asked the complainant's brother Muhammad Hanif as to why he had removed some tree branches in front of their house. Thereupon immediately Haider Bux and Rasool Bux Kaloi fired with their repeaters on Muhammad Hanif who fell down while sustaining firearm injuries on his chest, abdomen and right foot. P.W. Shafi Muhammad rushed to rescue Muhammad Hanif when accused Pir Bux Kaloi caused him a blow at his head with the backside of his hatchet who also fell down. Then the complainant and other villagers intervened and rescued the injured from the accused who then fled away. Thereafter injured were taken to the Civil Hospital where Muhammad Hanif succumbed to his injuries.

3. Mr. Mahmood A. Qureshi, learned Advocate Supreme Court appearing for the petitioner has submitted that the medical evidence on the record is in contradiction with the ocular version inasmuch as per the latter an injury has been recorded on the head of Shafi Muhammad with a sharp object whereas admittedly per the Prosecution case, blunt side of the hatchet was used. Secondly learned Advocate Supreme Court has submitted that it has been stated in the F.I.R. that the injured was taken to the hospital and then the F.I.R. was lodged at 7-30 p.m. but in the postmortem report the injured has brought to the hospital at 8-00 p.m. It means that the F.I.R. was lodged after consultation etc. and the entire family of the petitioner has been roped in learned ASC's next submission is that at the bail stage common intention has to supported by overwhelming evidence vis-a-vis the accused whereas in the present case the allegation against the petitioner is that he only injured one of the P.Ws. with his hatchet which is not sufficient to establish whether he shared the common intention with the main accused of doing away with the deceased. Finally learned Advocate Supreme Court has submitted that the maximum sentence for the injury attributed to the petitioner is only five years and three years which does not come within the prohibitory clause and hence bail should be considered.

4. On the other hand, Mr. Salim Akhtar, learned Additional Prosecutor-General has fully supported the impugned Order and according to him the petitioner is nominated in the F.I.R. and common intention is very much there as the injured was going forward to save the deceased and he was prevented to do so by the petitioner.

5. We have heard both the learned Advocate Supreme Court as well as the learned Additional Prosecutor-General and perused the record.

6. It would be seen that at this stage the only piece of evidence against the petitioner is the ocular account and the medical record which are not in consonance with each other. As per the former the blunt side of the hatchet was used and in the latter the injury has been shown by a sharp weapon. There is contradiction as to the timings in the case since per the F.I.R. the injured were taken to the hospital and then it was lodged at 7-30 p.m. whereas per the medical record the injured was produced in the hospital at 8-00 p.m. This prima facie would mean that perhaps the medical record is correct and the F.I.R. does not reflect the correct time when it was lodged since normally it is the practice that the injured is first taken to the hospital and then the F.I.R. is lodged. Finally it would be seen that the prohibitory clause of section 337-A(ii), Cr.P.C. is not attracted in this case as the maximum sentence for causing said injury is five years. So also at this stage we are of the opinion that the issue of common intention could only be decided at the trial as prima facie there appears to be none insofar as petitioner is concerned i.e. of having shared this with the other accused who fired at the deceased.

7. For all the foregoing reasons vide our short Order earlier we converted this Petition into an Appeal and allowed the same. Bail was granted to the petitioner subject to furnishing bail bonds in the sum of Rs.100,000 (Rupees One Lakh) with two sureties in the like amount to the satisfaction of the trial Court. MWA/P-18/SC Bail granted.