ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

 

CR. B. A. NO.S-721 OF 2009.

 

DATE                           ORDER WITH SIGNATURE OF JUDGE

 

10.12.2009.

 

1.      FOR ORDERS ON OFFICE OBJECTION A/W REPLY.

2.      FOR HEARING.

 

Mr. Bilawal Ali Ghunio, Advocate for the applicants.

 

Mr. Shahid A. Shaikh, A.P.G.

 

Applicants are present on interim pre-arrest bail.

. . . .

 

            Applicants namely Hadi Bux and Akbar alias Ali Akbar seek pre-arrest bail in Crime No.10 of 2009 of police station Thebat, under sections 324, 147, 148, 149, 114 and 504 PPC. The applicants were admitted on interim pre-arrest bail on 20.11.2009.

2.         The relevant facts of the case are that on 6.5.2009 at 1700 hours one Lakhadino Rind lodged report at police station thebat in respect of an incident allegedly took place on 12.4.2009. The complainant alleged that on the day of incident at about 1620 hours he, his brothers Tawakkal Ali and Sodho, nephews namely Aziz Abbas and Shafi Muhammad and relative Abbas Ali were present at his land, where accused Khadim Hussain, Muhammad, Hadi Bux, Abdul Rahim, Raziq Dino, Khaliq Dino, Jumo, Abdul Karim, Yakoob, Nooral Khoso, Arab and Asad Gabol duly armed with deadly weapons came there. Out of them, present applicants were armed with klashnikoves. On the instigation of accused Khadim Hussain, accused Hadi Bux fired upon the complainant party with his klashnikov, which hit at the right thigh of P.W. Abbas. Accused Akbar also caused firearm injury with his klashnikov at the left thigh of P.W. Abbas, who while raising cries, fell down. Thereafter, all accused left the scene.

3.         It is, inter alia, contended by the learned counsel for the applicants that they are innocent and have been falsely implicated in this case due to enmity, as an old scuffle is going on between the parties over a piece of land. Learned counsel further contended that per FIR applicants/accused have caused injuries to P.W. Abbas Ali at his thigh, which is non-vital part of the body and per medical certificate injuries have been declared under section 337-F(iii) PPC, which are punishable upto three years and does not fall within the prohibitory clause. Learned counsel further contended that though the applicants were said to be armed with deadly weapons but they did not repeat fire, therefore, applicability of section 324 PPC requires further probe. He lastly contended that there are counter versions in respect of same occurrence, as a case under crime No.9 of 2009 of P.S. Thebat has been lodged against the complainant party by the applicants and it is yet to be determined, which party was aggressor and which was aggressed against.

4.         Mr. Shahid A. Shaikh, learned A.P.G. for the State halfheartedly opposed the bail plea of the applicants.

5.         Heard learned counsel for the parties and perused the record. Admittedly, there are counter versions/FIRs in respect of the same occurrence, one version is given by the complainant and the other by the applicant party. So far the injuries received by the P.W. Abbas Ali are concerned, same have been declared as Ghayr-jaifah Mutalahimah falling under section 337-F(iii) P.P.C and punishable upto three years, therefore, do not fall within the prohibitory clause of Section 497(1) Cr.P.C and the grant of bail in such cases is a rule and its refusal is an exception, as held by their Lordhships in the case of TARIQ BASHIR and 5 others v. THE STATE (PLD 1995 Supreme Court 34). In the case of Shoib Mehmood Butt and 3 others Vs. Iftikhar-ul-Haq and 3 others, 1996 S C M R 1845 it has been observed by Honourable Supreme Court as under:

“In case of counter-versions arising from the same incident, one given by complainant in F.I.R and the other given by the opposite party case law 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 inquiry 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. In cases of counter-versions, normally, plea of private defence is taken giving rise to question as to which party is aggressor and which party is aggressed. In the case of Fazal Muhammad V. Ali Ahmad (1976 SCMR 391) in cross cases the High Court granted bail to the accused on the ground that there was probability of counter versions being true as some of the accused had received injuries including a grievous injury on the head of one accused. It was held by this Court that in such circumstances the High Court was right in granting bail and no interference was warranted. In the same context, reference can be made to the case of Mst. Shaiqan V. Hashim Ali and others (1972 SCMR 682).

 

6.         In the case of Master Dur Muhammad and 2 others V. The State (1994 P.Cr. L.J 1769 the applicants were admitted on bail when the allegations against them was that they have caused injuries to the complainant party on non-vital part of their bodies.

7.         In view of the dictum laid down by their Lordships in the cases of Tariq Bashir and Shoib Mehmood Butt (Supra) the case of the applicants requires further inquiry and at this stage as there are no reasonable ground to believe that they are guilty of any offence punishable for death or imprisonment for life or 10 years.

8.         For the foregoing reasons the interim pre-arrest bail earlier granted to the applicants vide order dated 20.11.2009 is hereby confirmed on same terms and conditions.

            Bail Application disposed of.

 

                                                                                                            JUDGE