ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr. Bail No. S-613 of 2009
DATE ORDER WITH SIGNATURE OF JUDGE
19.10.2009.
Mr. Muhammad Yousif Rahpoto, Advocate for the applicant.
Mr. Shahid Ahmed Shaikh, Assistant Prosecutor General Sindh for the State.
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AHMED ALI SHAIKH J: The applicants Umed Ali and Haji Ameer seek post arrest bail in crime No.09/2009 of Police Station Tando Raheem Khan for the offences punishable u/s 302, 324, 337 A(i), 147, 148,149 PPC.
2. The bail plea of applicants and co-accused Haji Gul has been turned down by the learned IVth Additional Sessions Judge, Dadu vide order dated 01.09.2009.
3. The relevant facts of the prosecution case are that on 13.06.2009, one Imamdad S/o Sono Khan Shahani lodged FIR stating therein that old enmity exists between him and Haji Gul Shahani and others over a plot, which is situated infront of his house. He further stated that on 12.06.2009, he alongwith his relatives namely Mohbat, Kamil, Pandhi and Sono was standing at the plot when at about 5.00 p.m. accused each Irshad 2. Waheed 3. Haji Ameer 4. Haji Gul and 5. Umed Ali came there. Out of them, Waheed was armed with hatchet while rest of the accused were armed with hatchets. Over the ownership of the plot, both the parties exchanged harsh words. In the meanwhile, accused Waheed caused blunt side of hatchet blows to Mohbat with intention to commit his murder which hit on his head, accused Irshad caused lathi blows at the head of complainant, accused Haji Gul casued lathi blow to Sono on his head, while present applicant Umed Ali caused lathi blows to Kamil and Haji Ameer caused lathi blows Pandhi. Due to injuries, Mohbat fell down and became unconscious. Complainant party raised cries. The womenfolk of the complainant brought Holy Quran. Thereafter accused persons went away. The complainant arranged conveyance and brought injured at P.S, obtained letter for first aid and went to Taluka Hospital Johi, where Mohbat succumbed to his injuries. Postmortem of the deceased was conducted and dead body was taken by the relatives of the complainant for funeral ceremony. After treatment, complainant left the hospital, appeared at Police Station and lodged such report.
4. During investigation, applicants alongwith two other co-accused were arrested and after completion of investigation, challan was submitted against them on 01.07.2009.
5. It is inter-alia contended by the learned counsel for the applicants/accused that applicants are innocent and they have not committed alleged offence but they have been dragged in this managed and concocted case by the complainant party due to enmity over the plot. His next submission is that the FIR is belated by more than 18 hours without plausible explanation, whereas the police station is situated at the distance of about 7/8 K.Ms from the place of occurrence. He further submitted that the only allegation against the applicant No.1 Umed Al is that he caused lathi blows to injured Kamil whereas applicant No.2 Haji Ameer allegedly caused lathi blows to Pandhi but the FIR did not disclose that at which parts of the body, they caused injuries to the injured, hence there are general allegations against the applicants. The injuries attributed to the applicants are simple in nature. His next submission is that the deceased Mohbat has received fatal blow at the hands of co-accused Waheed and the present applicants did not cause any injury to deceased Mohbat. He went on to say that so far the recovery of lathies from the applicants is concerned, same is managed and foisted upon the applicants as the lathies are easily available and can be foisted upon any one. He lastly submits that all the male members of same family have been involved in this case with malafide intention and ulterior motive on the part of complainant and that so far the question of vicarious liability is concerned, same will be determined by the trial court at the time of trial. I n support of his arguments, learned counsel relied upon the case of Yaroo Vs. The State 2004 SCMR 864, Farzand Ali Vs. Taj and two others 2000 SCMR 1854 and Muhammad Qasim Vs. The State 2003 P Cr. L J 775.
6. Learned State counsel very frankly concedes the bail plea of applicants/accused and submits that in view of dictum laid down by their lordships in the above cited cases, he is not in a position to resist the bail plea of the applicants.
7. Admittedly the FIR is belated by more than 18 hours and no plausible explanation has been furnished by the complainant, the FIR reveals that same has been lodged after postmortem of the deceased. It was accused Waheed, who caused fatal blow to deceased Mohbat and the present applicants did not cause any injury to the deceased per contents of FIR. There is no allegation against the applicants Umed Ali and Haji Ameer except that they caused lathi blows to Kamil and Pandhi respectively but the FIR is silent in respect of location of the alleged injuries. The injuries on the person of Kamil and Pandhi are simple in nature. The recovery of lathies from both the applicants at this stage cannot carry any weight as the same are not blood stained and these lathies can easily be arranged and foisted upon any one. All the male members of applicants’ family have been dragged in this case with sole object to create maximum pressure upon them. So far sharing of common intention or question of vicarious liability is concerned, same can be determined at the trial.
8. In view of the above and dictum laid down by their lordships in Farzand’s case supra where only simple injuries were caused by the accused to victim, accused were admitted on bail by the High Court and same order was challenged before Honourable Supreme Court but their Lordships did not cancel the same with the observation that exercise of discretional jurisdiction by the High Court in the matter of grant of concession of bail to the accused persons did not suffer from any inaccuracy.
9. For the foregoing reasons, I am of the opinion that the case of the applicants/accused requires further inquiry and they deserve concession of bail. I, therefore, allow this application and admit the applicants on bail subject to furnishing their solvent surety in the sum of Rs.300,000/- each and P.R. bond in the like amount to the satisfaction of learned trial court.
10. The bail application stands disposed of along with listed application.
JUDGE.
A.K.C