IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Present;

Mr. Justice Amjad Ali Sahito

Cr. Bail Appln. No. S – 344 of 2021

Applicants : Abdul Latif S/o Mocharo and Sadam Hussain S/o Allah Jewayo

Through Mr. Ubedullah Ghoto Advocate

Complainant : Bashir Ahmed Mahar

Through Mr. Muhammad Aslam Gadani Advocate

Respondent : The State

Through Mr. Shafi Muhammad Mahar, DPG for the State

Dated of hearing: 16.08.2021

Date of order : 16.08.2021

O R D E R

AMJAD ALI SAHITO, J – Through this bail application, the applicants/accused seek post-arrest bail in Crime No.15 of 2021 registered at Police Station Khanpur Mahar, District Ghotki for an offences punishable under Section 302, 337-A(i), 337-F(i), 337‑H(2), 147, 148, 149 and 114 PPC. The bail plea of the applicants/accused has been declined by learned I-Additional Sessions Judge (MCTC), Ghotki vide order dated 03.06.2021.

2. The facts of the prosecution case briefly stated are that on 21.03.2021, complainant Bashir Ahmed Mahar lodged his report at Police Station Khanpur Mahar that there is old dispute going-on in between one Moula Bux and Mocharo over the property, whereas, said Moula Bux used to issue threats to Shah Nawaz for facilitating his rivals. On the date of incident i.e. 18.03.2021, he (complainant) along with his uncle Shah Nawaz, maternal-uncle Jumo alias Jamaluddin, materal-cousin Karim Bux and cousin Khalid Ahmed on motorcycles were going to visit their relatives at Bhaitoor, when reached on the road leading from Shahpur to Bhaitoor near Fateh Shakh, all of a sudden they were confronted by accused Moula Bux alias Mouloo, Saeed Ahmed alias Saeedoo, Sadam (Applicant No.2), Altaf, having kalashinikovs, Khaliq Dino alias Ganhwar, Muhammad Waris alias Warisoo empty handed, Taj Muhammad alias Tajoo with lathi, Abdul Latif (Applicant No.1) with lathi and one unidentified accused having gun. On the instigation of accused Khaliq Dino alias Ganhwar, accused Moula Bux alias Mouloo caused Kalashnikov butt blows to Shah Nawaz on his head; accused Saeed Ahmed alias Saeedoo caused butt blows to Shah Nawaz on his right eye; accused Sadam and Altaf also caused Kalashnikov butt blows to Khalid Ahmed on his left hand fingers and back of right shoulder; accused Taj Muhammad alias Tajoo nd Abdul Latif caused lathi blows to Jumo alias Jamaluddin on his left side of head and right shoulder. Thereafter the complainant party entreated the accused persons in the name of Almighty Allah, then they went away while making aerial firing escaped towards their houses and then the injured persons were shifted to Khanpur Mahar hospital, from where the injured Shah Nawaz was referred to Civil Hospital Sukkur who succumbed to the injures in the hospital and after the post-mortem and interment, the complainant appeared at police station and lodged his FIR.

3. Learned counsel for the applicants/accused contended that the applicants/accused are innocent and have falsely been implicated in this case by the complainant due to enmity over the property; that as per FIR the allegation against the applicant/accused Abdul Latif is that he was having lathi and caused injury to injured Jumo alias Jamaluddin over left side of head and right shoulder which was declared as “Shujah-i-Khafifah” under Section 337-A(i) PPC, which is bailable; that the role assigned to applicant Sadam Hussain is that he along with co-accused Altaf caused kalashnikov butt blows to injured Khalid Ahmed on his left arm fingers and back of left shoulder and as per final medical certificated dated 18.03.2021 the Medical Officer has shown that the injury No.1 & 2 as hurt of other Sections-II, which is also bailable. It is further contended that the challan of the case has been submitted by the police and the applicants/accused are no more required for further enquiry; that in the circumstances, the applicants/accused have made-out a case for further inquiry as envisaged under Section 497(2) Cr.P.C.

4. Learned counsel for the complainant and learned DPG for the State prayed for dismissal of instant bail application by contending that the name of the applicants/accused are specifically mentioned in the FIR with the role that they actively participated in the commission of the offence by causing lathi as well as kalashnikov butt blows to injured Jumo alias Jamaluddin and Khalid Ahmed, whereas, one person namely Shah Nawaz has been done to death in the same incident, therefore, the applicants/accused are vicariously liable for the offence, as such they do not deserve for the concession of bail. The offence with which the applicants/accused have been charged entails capital punishment.

5. I have heard the learned counsel for the applicants/accused, learned counsel for the complainant and DPG for the State and perused the record. From the perusal of the record, it appears that both the applicants/accused have allegedly caused lathi as well as kalashnikov butt blows to injured / PWs Jumo alias Jamaluddin and Khalid Ahmed, respectively, whereas the injuries attributed to the present applicants/accused fall under Section 337-A(i) PPC, which is bailable. The applicants/accused are in jail and they are no more required for the purpose of investigation. The question of vicarious liability will be determined at the trial when evidence will be recorded before the trial court. In such circumstances, the applicants/accused have made-out a case for grant of bail in view of Sub-section(2) of Section 497 Cr.P.C. Consequently, the instant bail application is allowed and the applicants/accused are enlarged on bail subject to furnish solvent surety in the sum of Rs.100,000/- (One Lac) each and PR bond in the like amount to the satisfaction of trial Court.

6. The observations made hereinabove are tentative in nature and will not prejudice the case of either party at the trial.

Judge

ARBROHI