ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr.B.A.No.S- 453 of 2009

DATE                                     ORDER WITH SIGNATURE OF JUDGE

            For hearing.

19.10.2010

Mr. Noorul Haq Qureshi, Advocate for applicant.

Mr. Shabeer Hussain Memon, Advocate for complainant.

Mr. Shahid A. Shaikh, A.P.G for the State a/w I.O Muhammad Sulleman Wagan.

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Applicant Abdul Raheem seeks bail in Crime No.11 of 2008 P.S Bandhi for offence U/s 302, 148, 149 PPC.

The applicant approached the trial Court but his bail plea was turned down vide order dated 16.6.2009.

On 19.5.2008 complainant Hussain Bux Jamali lodged the report which reads as under:-

“Complaint is that Ali Sher Jamali and others are neighbourers and caste fellows, who eight years ago with their own free will sold three acres agricultural land to us. From such time we used to pursue and cultivate the said land. About a year back they asked to exchange one acre near our house. One our refusal they became annoyed and asked us that we will see you and we are not talking with each other. Today early in the morning I, my brothers deceased Lal Bux aged about 30 years, 2. Muhammad Khan, 3. Mir Muhammad accompanied to land from house for works of the land. Brother Lal Bux was ahead from us at some distance, when at about 0600 hours in the morning my brother deceased Lal Bux reached at our land near house of accused, meantime we saw every one Ali Sher son of Dhani Bux Jamali armed with gun, his brothers Bahadur Jamali armed with gun, Abdul Raheem Jamali armed with hatchet, his maternal uncles Muhammad Bachal armed with pistol and Muhammad Usman armed with gun both sons of Behram Jamali all resident of Deh 65 Nusrat came there. Soon after reaching Ali Sher Jamali with abuses asked my brother Lal Bux that you have not exchange the land therefore, we will not spare you and by raising hacakal asked us no body came near. We seeing weapons out of fear stopped there. Meantime, Ali Sher Jamali and Usman Jamali made straight fires with gun over my deceased brother who by raising cry fell on the ground. As he fell on the ground Abdul Raheem Jamali caused hatchet blows then all accused with abuses went away with their weapons towards houses. Thereafter, we went near to our brother Lal Bux having fire shots in the internal upper sides of both the thighs of the leg and hatchet injury near right knee from which sufficient blood was oozing and was in serious condition. Instantly arranged conveyance taken him to Nawabshah hospital for treatment where during treatment he expired. After his death and completing the proceedings by police of PS A-Section Nawabshah, the dead body was delivered to us, wherefrom we brought the dead body to village. Then dead body in the supervision of brothers delivered to village and I myself unboarded at Bandhi. No while appearing submitted complaint that above accused on account of above differences by their common intention duly armed with weapons made rioting murdered my brother Lal Bux by fire and hatchet injuries. I am complaining, investigation be done.”

            Per learned counsel, the prosecution story from very face of it appears to be false, fabricated and concocted one; there is no reasonable ground to believe that applicant has committed the above offence; the only allegation against the present applicant is that he caused hatchet blow on the knee of deceased Lal Bux whereas in postmortem report Medical Officer opined that death of deceased is caused by massive blood from the arm injury; per FIR and 161 Cr.P.C statements, co-accused have been shown responsible for causing injuries to deceased; PWs are relatives of the complainant; co-accused Muhammad Bachal and Bahadur have been granted bail by the trial Court. In support of his contentions, learned counsel has relied upon the case of Muhammad Afsar Vs. The State (1994 SCMR 2051).

            Conversely, Mr. Shahid A. Shaikh, learned A.P.G for the State assisted by Mr. Shabeer Hussain Memon, learned counsel for the complainant vehemently opposed the bail plea of the applicant on the ground that his name appears in the FIR, he was armed with hatchet and caused hatchet blow to the deceased.

            Heard learned counsel for the parties and perused the record.

            Admittedly, name of applicant appears in the FIR. At the time of occurrence he was said to be armed with hatchet and caused hatchet injury to the deceased Lal Bux on his knee. Complainant’s version is corroborated by medical evidence, 161 Cr.P.C statements of P.Ws and recovery of blood stained hatchet from the applicant. No doubt co-accused Ali Sher and Usman Jamali are responsible for causing fire arm injuries to the deceased but present applicant has also caused hatchet injury to the deceased. As far as the case of co-accused Muhammad Bachal and Bahadur is concerned, they did not cause any injury to the deceased hence the case of applicant stands on different footings. With profound respect, the law relied upon by learned counsel for the applicant is not helpful as the facts of the same are totally different and distinguishable.

            For the foregoing reasons, I am of the considered view that prima facie case exists against the present applicant therefore, he does not deserve the concession of bail. Consequently, I do not find any merit in the instant bail application which is accordingly dismissed.

            The above are the reasons of my short order dated 19.10.2010.

JUDGE

Tufail