IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, LARKANA
Crl. Bail Appln. No. S- 324 of 2023.
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Applicant: |
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Abdul Hameed |
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Through Mr. Himath Ali Gadehi, Advocate. |
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Complainant: |
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Hussain Bux |
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Through Mr. Ashiq Ali Kalhoro, Advocate. |
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The State: |
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Mr. Aitbar Ali Bullo, D.P.G.
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Date of hearing: |
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21-08-2023. |
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Date of order: |
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21-08-2023. |
O R D E R
SHAMSUDDIN ABBASI, J.- Through instant Criminal Bail Application, applicant/accused Abdul Hameed seeks his admission to post-arrest-bail in Crime No.112/2021, for offence under Section 302, 324, 337-A(i), 337-F (i), 147, 148, 149 P.P.C registered with Police Station, K.N. Shah, after rejection of his bail plea by the learned trial court vide order dated 07.06.2023.
2. The case of prosecution is that on 01.07.2021 complainant Hussain Bux Gadehi lodged F.I.R with P.S Khairpur Nathan Shah, in the following wording:
“It is complaint that, I am farmer by profession. That Khan Muhammad Gadehi have constructed Katcha shade Otaq in front of our houses and used to made sit strangers, as such we had restrained them not to made to sit strangers in the Otaq as our womenfolk used to pass from there and it is not a good thing, to which they had exchanged harsh words with us and were annoyed and they were asked for fighting with us. That, on 30.06.2021, I, my sons Ahsan, 2. Nadir Ali, 3. Farman Ali aged about 24/25 years and nephew Ayaz Ali son of Saleh and other inmates of the house were chitchatting and in the meantime at about 7.00 p.m., I with some work came out of my house and reached in street at my door, where I saw and identified accused 1. Khan Muhammad son of Waris, 2. Ishfaque Ali son of Khan Muhammad, 3. Arz Muhammad son of Jan Muhammad all three by caste Gadehi, resident of Daim Khan Gadehi, Taluka K.N. Shah, all three were having “dandas” in their hands, 4. Abdul Hameed son of Noor Muhammad, 5. Rauf son of Abdul Hameed both by caste Gadehi, resident of Beero Khan Gadehi, both were having “dandas” in their hands, 6. Sadaqat son of Imdad Ali Gadehi resident of Bahadur Khan Gadehi armed with hatchet, 7. Two unknown persons with open faces, who have been seen very well by e and could be recognized, they were having pistols in their hands; all were standing there; out of them accused Khan Muhammad while abusing me asked that you have become so powerful that you are restraining us from serving our guests in the Otaq, to which I asked him to be gentleman and not to abuse, as such accused Khan Muhammad caused me “danda” blow on my head with intention to cause murder; I raised cries which attracted my sons Ahsan Ali, 2. Nadir Ali, 3. Farman Ali and nephew Ayaz Ali son of Saleh who came running from the house and in the meantime, I, saw that from the houses of the accused persons, Mst. Rasheeda wife of Khan Muhammad Gadehi resident of Daim Khan Gadehi having “danda” in her hand came there and she caused “danda” blow to my nephew Ayaz Ali on his forehead and accused Ashfaque Gadehi caused “danda” blow to my son Farman Ali on wrist of left arm; then accused Sadaqat caused back side hatchet blow to my son Farman Ali on his head with intention to murder him, who fell down on the ground by raising cry. Then, accused Sadaqat caused hatchet blows to my son Farman Ali on both of his feet and accused Khan Muhammad and Abdul Hameed Gadehi caused “danda” blows to me on my head with intention to commit murder and accused Rauf caused “danda” blow to my son Ahsan Ali on his head with intention to murder him. Then all the above accused persons caused “danda”, back side hatchet and butt blows of the pistols to all of us on head, back and other parts of the body, as such we raised cries as “murder-murder”, to which many villagers and our womenfolk came out of the houses by bringing Holy Quran and entreated the accused persons in the name of Almighty Allah and Holy Quran, then all the accused persons while abusing went away and after departure of the accused persons, I, saw that my son Farman Ali was having injury on his head and bleeding and was lying unconscious and my son Ahsan Ali, Nadir Ali and nephew Ayaz Ali were also having injuries on head and other parts of the body, and I was also bleeding from my head. We arranged conveyance and brought serious injured Farman Ali and other injured to P.S K.N. Shah and obtaining letter went to Taluka Hospital K.N. Shah, where my son Farman Ali succumbed to injuries in the hospital. Then, I, informed the police of K.N. Shah. As such, K.N. Shah police came there, who after necessary formalities and postmortem of my son Farman Ali handed over his body to me for its burial, I brought his dead body and after burial, now I have come to report the matter to the above effect and pray for investigation.”
3. Learned counsel for the applicant mainly contended that co-accused Mst. Rasheeda has been granted bail by this Court vide its Order dated 17.01.2022 in connection with Crl. Bail Appln. No. S- 502 of 2021, and case of the present applicant is on same footings to that of co-accused Mst. Rasheeda. Learned counsel has already placed on record true copy of the order. Per learned counsel, the applicant, on the basis of rule of consistency, also deserves same concession and treatment. He however further added that the applicant has been suffering from mental ailment, as in the year 2019, special medical board was constituted regarding mental health condition of applicant, which opined that he is suffering from major depressive disorder and he was advised to be kept under treatment. Per learned counsel the applicant did not remain absconder, but since he was ailing and remained under treatment, he could not join the trial. Lastly, learned counsel prayed for grant of bail to the applicant.
4. Learned Addl. P.G. as well as learned Advocate for complainant could not controvert above position; however they half heartedly opposed the grant of bail.
5. Heard learned counsel for respective parties and perused the material available on record.
6. The record reflects that, there is delay of one day in lodging of F.I.R without proper explanation and it cannot be ruled out that in background of murderous enmity the F.I.R has been lodged after due deliberation and consultation. It further appears from the record that applicant and co-accused Khan Muhammad have been assigned role of causing “danda” blows to complainant on his head and such injury on person of complainant has been declared as “Shajjah-e-‘Khafifah”, whereas co-accused Mst. Rasheeda was also assigned role of causing “danda” blow to PW Ayaz Ali and that injury was also declared as “Shajjah-e-‘Khafifah”. And, it is matter of record that, co-accused Mst. Rasheeda has been granted bail by this Court vide Order dated 17.01.2022 passed in Crl. Bail Appln. No. S- 502 of 2021 and case of the applicant appears to be on same footings. Since, co-accused Mst. Rasheeda has been admitted to bail by this Court and case of present applicant appears to be mostly on same footings, therefore, rule of consistency is applicable to the case of present applicant also. Even otherwise, the injury assigned to the applicant has been declared as “Shajjah-i-Khafifah” falling under Section 337-A (i) P.P.C., which is bail-able; carrying punishment upto only two years and do not fall within prohibitory clause of Section 497 Cr.P.C. So for as, absconsion of the applicant is concerned, it is well settled law that mere absconsion would not come in way of grant of bail, if otherwise a case for bail is made out. In this regard, the Honourable Supreme Court of Pakistan in the case of MITHO PITAFI versus THE State (2009 SCMR 299), has observed that bail could be granted, if the accused has good case for bail on merits and mere his absconsion would not come in the way while granting him bail. Furthermore, the investigation of the case has been finalized and physical custody of the applicant is no more required to police for the purpose of investigation and he is in custody since date of his arrest without any progress in trial of the case. In these circumstances continuous custody of the applicant in jail is not likely to serve any beneficial purpose at this juncture.
7. For the foregoing reasons, the instant bail application stands allowed and applicant is granted post-arrest bail upon his furnishing solvent surety in the sum of Rs.300,000/- (Three hundred thousand rupees) and P.R bond in the like amount to the satisfaction of trial Court.
Judge
Ansari