ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr. Bail No. S-600 of 2009
DATE ORDER WITH SIGNATURE OF JUDGE
15.10.2009.
Mr. Ayaz Hussain Tunioi, 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 seek post arrest bail in crime No.134//2009 of Police Station Shahdadpur for the offences punishable u/s 302,324, 147,148,149 and 353 PPC.
On 27.02.2008 at 1430 hours, one Niaz Hussain S/o Sahib Khan lodged the report with P.S. Shahdadpur. The contents of FIR are reproduced hereunder:-
“Complaint is that I am zamindar and reside at above mentioned address. We have got enmity with Muhammad Rind and Gul Rind. My maternal cousin namely Muhammad Arab alias Haji Khan s/o Inayat Ali and relative Hussain Bukhsh s/o Dilshad Khan Rind are confined in District Jail Sanghar in a case of quarrel with the persons of Rind community. On 27-10-2008 there was date of hearing in the Court of Civil Judge Shahdadpur to which I and my relatives Razi Khan s/o Nabi Bukhsh Rind and Rajab Ali s/o Ghulam Rasool Rind came in the Court to meet Muhammad Arab alias Haji Khan and Hussain Bukhsh. We saw that the people of Rind community namely (1) Muhammad s/o Abdul Hakeem alias Hako Rind (2) Gul s/o Allah Warayo Rind (3) Amb s/o Allah Warayo Rind (4) Latif s/o Abdul Hakeem alias Hako Rind (5) Ashraf alias Dost Ali s/o Abdul Hakeem alias Hako Rind (6) Muhammad Juman alias Khan s/o Kheroo Rind, were sitting in the office of PSI Ghulam Abbas Rind and were making consultation. We were waiting for arrival of UTPs from Sanghar, meanwhile the prisoners in police custody reached in the Court from Sanghar. My maternal uncle Muhammad Arab alias Haji Khan and relative Hussain Bukhsh were handcuffed separately, also reached there along with other prisoners an under the police custody were entering inside the Court, we were also following them when at about 11-00 hours my maternal cousin Muhammad alias Haji Khan duly handcuffed in police custody entered inside the office of PSI, where already sitting accused suddenly got up, took out pistols from their folds of shalwars and accused Ashraf alias Dost Ali Rind and Amb Rind made straight fires from their pistols upon my maternal cousin Muhammad Arab alias Haji Khan which hit him on his chest who fell down, other accused Muhammad s/o Abdul Hakeem Rind, Gul s/o Allah Warayo Rind, Latif s/o Abdul Hakeem Rind and Khan s/o Kheroo Rind made straight fires from their respective pistols upon Hussain Bukhsh in order to kill, but same did not hit him and missed. In the meantime there was panic in the court, we due to fear did not go near to them and accused persons while making firing ran away. Thereafter we saw that my maternal cousin Muhammad Arab alias Haji Khan had sustained bullet injuries on his chest from front side, whom we and police were taking to Taluka Hospital Shahdadpur in police mobile for treatment but he succumbed his injuries in the way. Thereafter I after leaving above named witnesses at Taluka Hospital with the dead body of deceased, after consultation with the relatives, appear and complain that above named accused persons with their common intention duly armed and on the instigation and consultation of PSI SIP Ghulam Abbas Rind, accused Ashraf alias Dost Ali and Amb Rind made fires from their pistols and murdered my maternal cousin Muhammad Arab alias Haji Khan and other accused with intention to kill made firing upon my relative Hussain Bukhsh and restrained the police in discharge of their duties, police party also made aerial firing in their defence. Complaint for investigation”.
During the course of investigation, police arrested applicant Muhammad on 27.10.2008 whereas applicant Muhammad Juman was arrested on 31.10.2008, a T.T pistol was also recovered from applicant Muhammad Juman.
Per learned counsel, the applicants are innocent and have nothing to do with the above occurrence in any manner. His next submission is that the applicants and complainant party are at daggers drawn as prior to this, the applicants have been implicated in several cases by the complainant party and hence their false implication in this case cannot be ruled out. He further submits that the only allegation against applicants is of ineffective firing and admittedly they did not cause any injury to the deceased or any P.W; that the applicants are not responsible for causing injuries to the deceased Muhammad Arab @ Haji Khan. He further went on to say that per FIR, UTP Hussain Bux was handcuffed at the time of occurrence and unable to move freely from the place of occurrence even then he did not receive any injury at the hands of applicants; the prosecution story seems to be unnatural and does not attract prudent mind. He lastly contended that so far the recovery of T.T pistol from applicant Muhammad Juman is concerned, same has been foisted upon him and that there are no reasonable grounds to believe the applicants guilty of above offence but there are sufficient grounds to believe that the case of the applicants falls within the ambit of further inquiry. He relied upon the case of Muhammad Sadiq and another Vs. State (1996 SCMR 1654) and case of Lakha Dino Vs. The State (2002 MLD 610).
On the other hand, learned Assistant Prosecutor General for the state opposed the bail plea of the applicants on the ground that their names appear in the FIR and at the time of occurrence they were present at the scene and made firing upon the UTP Hussain Bux with intention to commit his murder and a T.T. pistol has been recovered from the applicant Muhammad Juman, therefore, the applicants/accused are not entitled for concession of bail.
No doubt the names of the applicants/accused find place in the FIR but the only allegation against them is of ineffective firing and admittedly none amongst the UTPs or P.Ws received any injury at their hands. The enmity between the parties is admitted by the complainant in his FIR, which too is belated by 3 ½ hours; specific role of causing murder of deceased Muhammad Arab @ Haji Khan is attributed to co-accused Ashraf @ Dost Ali and Aumb. It is very strange that at the time of occurrence UTP Hussain Bux was handcuffed and was completely at the mercy of accused but even then he remained safe and did not receive any injury at the hands of applicants, such aspect of the case creates doubt about the truthfulness of the prosecution version regarding making firing by the applicants/accused with intention to commit murder of UTP Hussain Bux. The name of co-accused Ghulam Abbas has been placed in column No.2 of the challan. Mashirnama of place of wardat reveals that from the office of PSI, police secured two empties of 30 bore pistol. In FIR, it is specifically alleged that co-accused Ashraf @ Dost Ali and Aumb made straight fires upon Muhammad Arab @ Haji Khan and present applicants also made fires upon UTP Hussain Bux with their respective pistols but from the place of occurrence instead of four, two empty shells of 30 bore have been secured.
In similar circumstances, Honourable Supreme Court of Pakistan in case of Muhammad Sadique and another Vs. The State (1996 SCMR 1654) admitted the accused on bail against whom there was allegation of firing and raising Lalkara at the time of occurrence. In the above said case, accused were armed with pistol and rifle yet they did not cause any injury to the complainant party. In another case of Faraz Akram Vs.The State (1999 SCMR 1360), the Honourable Supreme Court was pleased to admit the accused on bail on the ground that no overt act allegedly ascribed to the accused except of ineffective firing, which also stood disproved because no empty was recovered from the spot. Fatal shot was attributed to co-accused and question of vicarious liability of accused could be determined at the time of trial, case against accused thus requires further inquiry as contemplated u/s 497 Cr.P.C. In case of Attaullah and 3 others Vs. The State (1999 SCMR 1320), Honourable Supreme Court was pleased to restore the bail which was cancelled by the High Court on the ground that accused were not alleged to have caused any injury to the deceased. In case of Mumtaz Hussain and 5 others (1996 SCMR 1125), the accused were admitted on bail by their Lordships on the ground that accused despite being allegedly armed with deadly weapons like rifle, gun and hatchet had only caused simple blunt injuries to some of the P.Ws using the wrong side of their weapons. The Honourable Supreme Court further observed that whether the accused in such circumstances, shared common intention with co-accused, who had caused death of deceased needed further inquiry.
In view of the above circumstances and dictum laid down by their lordships in the above quoted cases, I am of the view that at this stage there are no reasonable grounds to believe that the applicants are guilty but there are sufficient grounds to believe that their case requires further inquiry as contemplated under section 497(i) Cr.P.C. I, therefore allow this application and admit the applicants/accused on bail, subject to furnishing their solvent surety in the sum of Rs.500,000/- (Rupees five lacs only) each with PR Bond in the like amount, to the satisfaction of the learned trial Court.
The bail application stands disposed of along with listed application.
The above are the reasons of my short order dated 12-10-2009.
JUDGE.
A.K.C