Order Sheet.

 HIGH COURT OF SINDH, CIRCUIRT COURT HYDERABAD.

CR. B. A. NO.S-394 OF 2009.

Sain Bux. . . . . . . V. . . . .The State.

Date              Order with signature of Judge

06.11.2009.

      Mr. Ishrat Ali Lohar, Advocate for the applicant.

Mr. Shahid Ahmed Shaikh, Assistant Prosecutor General, Sindh.

. . . .

      Applicant Sain Bux seeks post arrest bail in Crime No.109 of 2009, registered at Police Station Qazi Ahmed, for offence under sections 324, 337-A(i), 337-A(ii), 337-F(i), 337-L(ii), 337-H(ii), 147, 148 and 149 and 504 P.P.C.

      The bail plea of the applicant has been turned down by the trial Court vide impugned order dated 15.6.2009.

      The allegation against the present applicant is that on 05.05.2009 he alongwith co-accused Karim Bux, Mour, Abid, Dhani Bux and Rasool Bux came at the lands of the complainant. Thereafter applicant Sain Bux while abusing the complainant party made straight fire with his gun upon them with intention to commit their murder, which hit P.W Mushtaq Ahmed, the nephew of the complainant, at his leg, who raised cries and fell down. Co-accused Abid caused him lathi blows at his back, whereas co-accused Karim Bux gave hatchet blow to P.W. Abdul Sattar and co-accused Dhani Bux gave blunt side of hatchet blow to him on his head and back. Accused Rasool Bux gave hatchet blow to Murtaza on his head and left hand. It is alleged that accused Mour made aerial fire. On the hue and cry of the complainant party P.Ws Naseer Ahmed, Abdul Ghaffar and others came at the scene and they saved the complainant party from accused. Thereafter accused Sain Bux and Mour while making aerial firing and abusing the complainant party ran way alongwith other co-accused.

      During the course of investigation police arrested the present applicant on 10.5.2009.

      At the very outset learned counsel for the applicant contended that there are counter versions in respect of same occurrence as the F.I.R. bearing Crime No.118 of 2009 under sections 337-F(v), 337-F(i), 337-A(i), 337-(ii) and 504 P.P.C., has been registered by Ghulam Abbas, the son of the applicant, at the same police station. He further contended that it is settled law that when there are counter version in respect of same occurrence, the case would require further inquiry on the point that as to who was aggressor and who was aggressed by and such liability could be decided at the trial. It is further contended that the offence does not fall within the prohibitory clause of section 497(1) Cr.P.C. Learned counsel has placed on record the attested photostat copy of CNIC of the applicant to show that the applicant is an old man of aged about 64 years. He next contended that no one can be kept behind the bars indefinitely irrespective of the seriousness of the offence. He further contended that the liberty of the citizen which is very valuable right and same cannot be trifled with. He lastly contended that even at bail stage the benefit of doubt can be extended in favour of the accused and the law cannot be stretched in favour of the prosecution. He relied upon the cases of (1) SHOIB MEHMOOD BUTT v. IFTIKHAR-UL-HAQ and 3 others (1996 S C M R 1845) and (2) TARIQ BASHIR and 5 others v. THE STATE (P L D 1995 Supreme Court 34).

      Learned A.P.G. appearing for the State vehemently opposed the bail plea of the applicant on the ground that his name appears in the F.I.R. with specific role, as he caused firearm injury to P.W. Mushtaq Ahmed; that initially the injuries were declared as Shajjah Ghayr-jaifah which falls under section 337-F(v) P.P.C., and punishable up to five years, but later on such medical certificate was challenged and a Medical Board was constituted and after examination of the injuries of P.W. Mushtaq Ahmed same have been declared as Shajjah Ghayr-jaifah Munaqqillah instead of Ghayr-jaifah, which is punishable up to seven years. He further contended that from the place of occurrence the police had secured four empty cartridges and the F.I.R. has been lodged promptly without loss of any time.

      Learned counsel for the complainant remained absent without any intimation. I am of the opinion that in presence of learned A.P.G. the case of the complainant party would not be prejudiced in any manner. The orders dated 6.10.2009 and 30.10.2009 reveal that on those dates the counsel for the complainant remained absent. Moreover, the counsel for the complainant was supposed to assist the learned A.P.G. The learned A.P.G. who is responsible law officer and well prepared has properly assisted this Court.

      Admittedly, there are counter versions in respect of the same case, as the F.I.R. bearing Crime No.109 of 2009 has been registered by the complainant party while another F.I.R. bearing Crime No.118 of 2009 has also been lodged by Ghulam Abbas, son of the applicant, in respect of the same occurrence. Furthermore, all accused nominated in Crime No.118 of 2009 are on bail. From the medical certificate issued by the Medical Board it appears that the offence does not fall within the prohibitory clause of section 497(1) Cr.P.C., and in likewise cases basic rule is bail and its refusal is an exception. Moreover, it has been held by their Lordships in SHOIB MEHMOOD BUTT v. IFTIKHAR-UL-HAQ and 3 others (1996 S C M R 1845) as under:-

"In case of counter versions arising from same incident, one given by complainant in F.I.R. and other given by opposite party it is almost settled that such cases are covered for grant of bail on the ground of further enquiry as contemplated under section 497(2) Cr.P.C. In such cases normally, bail is granted on the ground of further enquiry for the reason that the question as to which version is correct is to be decided by the trial Court which is supposed to record evidence and also appraise the same in order to come to a final conclusion in this regard."

So far the applicability of section 324 P.P.C., is concerned, it requires further probe, as from the conduct of the applicant it appears that he had no intention to commit the murder of the complainant party as he did not repeat the fire. Moreover, P.W. Mushtaq Ahmed has received the injuries on non-vital part of his body.

      For the foregoing reasons, I am of the considered view that the case of applicant requires further enquiry as contemplated under section 497(2) Cr.P.C. I therefore, allow this application and admit the applicant on bail subject to his furnishing solvent surety in the sum of Rs.100,000/- (One Hundred Thousands) with P.R. Bond in the like amount to the satisfaction of the trial Court.

      Bail application disposed of.

                                                      J U D G E