ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr.Bail.Appl.No.S-  627  of 2010

DATE                                     ORDER WITH SIGNATURE OF JUDGE

            1. For orders on MA 2975/10.

            2. For hearing.

06.10.2010

Mr. Ghulam Shabir Babar, Advocate for applicant.

Mr. Shahid Ahmed Shaikh, A.P.G for the State.

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1.         Granted subject to all just exceptions.

2.         Applicant Muhammad Haroon seeks post arrest bail in Crime No.47 of 2009 of Police Station Pabjo registered U/s 302, 148, 149 PPC.

The applicant approached the trial Court but his bail plea was turned down on 14.12.2009.

The contents of prosecution case in nutshell are that on 11.9.2009 at 2-00 p.m while complainant Muhammad Ramzan alongwith his brother Habibullah, Imam Bux and Saifal was present at the land of Qasim Dahri, when accused each 1. Rabbani armed with DBBL gun, 2. Sarwar armed with pistol, 3. Shahnawaz with gun, 4. Parvez with pistol, 5. Qasim, 6. Jagan, 7. Arif and 8. Haroon armed with guns came there. Out of them accused Rabbani challenged the complainant party and stated that they had to settle down the score, saying so accused Rabbani made straight fire upon Habibullah which hit at his left thigh  who raised cry and fell down. Later on  all the accused went away. Leaving the above PWs over the dead body, complainant went to Police Station and lodged the report.

Per learned counsel, the applicant is innocent and has been falsely implicated in this case; the specific role is attributed to co-accused Rabbani who per prosecution caused fire arm injury to deceased Habibullah; no overt act is attributed to the present applicant, merely his presence at the place of occurrence is shown; even there is no allegation of aerial firing or pro-verbal lalkara against the applicant. It is urged with vehemence that prior to this case, a case under Crime No.46 of 2009 was lodged against the complainant party by cousin of applicant Haroon and challan of that case has been submitted before the concerned Court wherein complainant Muhammad Ramzan has been shown as absconder. Per learned counsel, this is a case of counter version, as one version is given by complainant Muhammad Ramzan in FIR No.47 of 2009 whereas another version is given by complainant Allah Bux (cousin of applicant in Crime No.46/2009). So far sharing common object is concerned, he submitted that it is yet to be determined by the trial Court whether at the time of alleged incident, the present applicant shared common object or was the member of an unlawful assembly. In support of his contentions, he has relied upon the case of Muhammad Shahzad Siddique Vs. The State and another, reported in PLD 2009 Supreme Court 58.

On the other hand, learned A.P.G for the State opposed the bail plea of applicant on the ground that he was member of unlawful assembly and shared the common intention.

Heard learned counsel and perused the record.

Admittedly it was co-accused Rabbani who caused fire arm injury to deceased Habibullah. It is not alleged that present applicant caused any injury either to the deceased or any of the PWs. Only his presence has been shown and no overt act is attributed to the present applicant. Besides this, no recovery has been affected from the present applicant. There is another aspect of the case that in respect of same occurrence a case under Crime No.46/2009 has been registered by the cousin of present applicant in which the complainant Muhammad Ramzan and others including the deceased Habibullah have been nominated. Since there are counter cases and there is settled principle of law that in case of counter versions arising from the same occurrence, one given by complainant in FIR and other given by opposed party, in such cases normally bail is granted on the ground of further inquiry for the reasons that question as to which version is correct is to be decided by the trial Court which is supposed to record the evidence and also appraise the same in order to come to a final conclusion in this regard.

For the foregoing reasons and dictum laid down by their lordships in the case of Shoaib Mehmood Butt Vs. Iftikhar-ul-Haq and 3 others, reported in 1996 SCMR 1845, I am of the considered view that case of applicant requires further probe. Consequently, applicant is admitted on bail subject to furnishing solvent surety in the sum of Rs.200,000/- (Two lac) and P.R Bond in the like amount to the satisfaction of the trial Court.      

JUDGE

Tufail