ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                Cr. B.A No.S- 338  of   2010

DATE         ORDER WITH SIGNATURE OF JUDGE

11.8.2010.

                        Mr. Riazat Ali Sahar Advocate for applicant Najaf Ali.

Mr. Muhammad Sachal Awan Advocate for the applicant Badaruddin.

Mr. Shahid Ahmed Shaikh Assistant P.G. for the State.

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AHMED ALI M. SHAIKH J:           Through the instant application, applicants Najaf Ali and Badaruddin @ Imran seek post arrest bail in crime No.80/2010 of P.S Kotri registered u/s 302,324, 337 H(ii), 34 PPC.

2.         The bail plea of the applicants/accused was turned down by the learned trial court vide order dated 26.04.2010.

3.         facts giving rise to this bail application are that on 20.03.2010 one Sajjad Ali Shoro lodged report stating therein that his brother Iqbal @ Jogi is Nek Mard of the locality as well as social worker. Some one made complaint to his brother that one Ghulam Ali Butt is occupying the vacant plot of the railway department, on which his brother assured him that he will try to prevent him. He further stated that on the same day, he,  his brothers Iqbal @ Jogi, Allah Bux and cousin Pervez Shoro went to Kotri Town at about 9.00 a.m when they reached at the railway water tank at Khanpur road, they saw each Ghulam Ali Butt armed with repeater, Najaf Ali and Badaruddin @ Imran armed with pistols. His brother Iqbal @ Jogi asked the accused Ghulam Ali as to why he has occupied the railway plot, meanwhile Ghulam Ali Butt after abusing his brother made straight fire upon Iqbal @ Jogi with intention to commit his murder, which hit him at the left side of his shoulder, who raised cries and fell down. Accused Najaf Ali caused pistol butt blows at the head of P.W. Allah Bux. Later on the complainant saw that his brother had received pallet injuries at his left shoulder and at belly and blood was oozing. After firing in air, accused went away. The complainant thereafter brought his brother at Taluka Hospital Kotri wherefrom he was referred to Civil Hospital Hyderabad, where he succumbed to the injuries. After leaving the above P.Ws and other relatives over the dead body, the complainant appeared at police station and registered the FIR.

4.         M/s Riazat Ali Sahar and Muhammad Sachal Awan learned counsel for the applicants contended that the co-accused Ghulam Ali Butt is responsible for committing murder of deceased. Per learned counsel, the applicants are innocent and have nothing to do with the alleged incident. It is further contended that the present applicants/accused did not cause any injury to the deceased. As for the allegations against applicant Najaf Ali are concerned, it is alleged that he caused pistol butt blows to P.W. Allah Bux and per learned counsel, in medical certificate single injury has been shown and same has been declared as Shujjah-e-Khafifah which is punishable with two years and bailable. It is urged with vehemence that no sanctity can be attached to the medical certificate as in the FIR, complainant categorically stated that after occurrence he brought the deceased to Taluka Hospital Kotri and later on he was referred to Civil Hospital Hyderabad, where he succumbed to the injuries and after leaving the P.Ws and other relatives over the dead body, he came at P.S and lodged report. Per learned counsel in medical certificate of Allah Bux, his time of arrival at Hospital is shown as 9.00 a.m. whereas FIR was registered at 1030 hours. Per learned counsel so called recovery of pistols on the joint pointation of applicants/accused is also highly doubtful as the same has been effected from an abandoned place. Learned counsel in support of their contention, relied upon the case of Farzand Ali Vs. Taj and two others (2000 SCMR 1854).

5.         Conversely, Mr. Shahid Ahmed Shaikh learned Assistant P.G for the State opposed the bail plea of the applicants on the ground that their names appear in the FIR.  There is specific allegation of causing pistol butt blows to P.W. Allah Bux, against accused Najaf. He further contended that there is recovery of pistols on the pointation of applicants, therefore, they do not deserve concession of the bail.

6.         Heard learned counsel for the parties and perused the record.

7.         No doubt, the names of applicants/accused transpire in the FIR but from the contents of FIR, it appears that there was dispute between deceased Iqbal @ Jogi and accused Ghulam Ali Butt and it is specifically alleged in the FIR that Ghulam Ali Butt was going to occupy the railway plot  whereas no such allegation was leveled against the present applicants. It further transpires that Ghulam Ali was armed with repeater and committed the murder of deceased Iqbal @ Jogi by causing fire arm injuries. So for the role of present applicants is concerned, admittedly none of them caused any injury to the deceased but per FIR applicant Najaf Ali caused pistol butt blows to PW Allah Bux on his head. In medical certificate  only one injury has been shown and same is declared as Shujjah –e- Khafifah which is punishable with two years R.I  and bailable. On perusal of medical certificate issued by the Medical Officer Taluka Hospital Kotri, it appears that date and time of arrival of injured Allah Bux is shown as 9.00 a.m on 20.03.2010 whereas the FIR was registered on 20.03.2010 at 1030 hours. From the perusal of FIR it appears that after this unhappy episode, complainant party brought the deceased at Taluka Hospital Kotri wherefrom he was referred to Civil Hospital Hyderabad and ultimately they went to Civil Hospital where he succumbed the injuries and later on they brought the dead body of deceased at Taluka Hospital Kotri and left the above P.Ws and other relatives over the dead body and then complainant went to police station and lodged FIR. No doubt at bail stage deeper appreciation of evidence cannot be made and only tentative assessment can be undertaken, however, this fact creates doubt to the extent  of injury of PW Allah Bux. Since the applicants/accused did not cause any injury to the deceased and following the dictum laid down in Farzand Ali’s case supra, I am of the considered view that the applicants have made out case for bail. Accordingly, I allow this application and admit the applicants on bail subject to furnishing surety in the sum of Rs.200,000/- (Two hundred thousands) each and P.R bond in the like amount to the satisfaction of the trial court.

8.         Before parting with the order, it is made clear that the observations made are tentative in nature and will not prejudice the case of either party.

9.         Cr. Bail Application stands disposed alongwith listed application.

JUDGE