ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr.B.A.No.S- 600 of 2010

DATE                                     ORDER WITH SIGNATURE OF JUDGE

            1. For orders on MA 2813/10.

            2. For hearing.

Date of hearing:         25.10.2010.

Date of order:

Mr. Noorul Haq Qureshi, Advocate for applicant.

Syed Meeral Shah, D.P.G for the State a/w Dr. Hukum, M.L.O, L.U.H, Hyderabad.

Mrs. Razia Ali Zaman Khan, Advocate for complainant.

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Applicant Prem seeks bail in Crime No.46 of 2010 P.S Site, Hyderabad for offence U/s 302, 34 PPC.

The applicant approached the trial Court but his bail plea was turned down vide order dated 02.8.2010.

The facts giving rise to this application are that on 20.5.23010 complainant Hari Ram lodged the report which reads as follows:-

“Report is that I am residing at the above address doing labour. My son namely Amarnath used to sell the vegetable on handcart by purchasing the same from vehetable market and the boys of Bagri brothery are also doing same business. On 24.02.2010 at 1200 hours in the day my both Amernath and my brother Doulat Ram alias Dolati went to purchase vegetable from vegetable market, where namely Prem, Shevo and Rajo r/o Phuleli Par infront of Zeal Pak by caste Bagri were available in the vegetable market for purchasing vegetables. My son purchased vegetables and above boys too settled the rates of lady finger and tomato etc. My boy Amernath have extended 2/3 rupees from the rate fixed by them and purchased such vegetable, on which above accused became annoyed and abuses extended threats of committing murder by uttering the words went away that in the morning you will participate the auction of vegetable. In the same day at about 0100 pm my boy Amernath and my brother Doulat Ram alias Dolati after selling vegetables at Fateh Chowk, were returning to home, when above accused namely Prem son of Gumro, 2. Shevo son of Gumro and 3. Rajo son of Karo of Bagri tribe encircled my son and brother. I too with some work came from my house towards Fateh Chowk where I saw all three accused were causing kicks, fists blows on his head, chest and stomach and leaving my son Amernath in just dead condition left on our cries. Thereafter, I brought my son Amernath to SITE PS wherefrom obtained letter for treatment, taken my son to LMUH and go him admitted, where my son Amernath on the next day succumbed to the injuries. I submitted such application to Honourable Sessions Judge Hyderabad on which Honourable IVth Additional Sessions Judge, Hyderabad issued an order for lodging FIR and now I have come to lodge report that Prem son of Gumro, 2. Shevo son of Gumro, 3. Rajo son of Karo all by caste Bagri on a trivial thing of enhanced rate of the vegetables thereby on becoming annoyed abused and extended threats, thereafter at 1.15 hours attached upon him with intention to commit murder, committed his murder by kicks  and fists blows, investigation be done .”

            Per learned counsel, the prosecution story from the very face of it, seems to be false, fabricated and connected one; no evidence is available on record to connect the applicant with the commission of offence; the medical evidence does not support the complainant’s version; when the dead body was exhumed from the grave, the medical board could not disclose the cause of death of deceased Amernath; the medical certificates show that deceased Amernath was suffering from hypatic and Encephalopathy and subsequently he become LAMA; the cause of death is shrouded in mystery as the Doctors could not ascertain the cause of death; the alleged incident is said to be occurred on 24.2.2010 at 1315 hours but provisional medical certificate dated 24.2.2010 reveals the time of incident at 7-00 PM on 23.2.2010 whereas arrival of deceased Amernat shown in the hospital at 1000 hours on 24.2.2010 which negates the version put forth by the complainant, the brother of deceased namely Prem has given the date of earlier incident to be 22.2.2010 and subsequent to that on 23.2.2010 when N.C was lodged on 24.2.2010; per learned counsel after usual investigation, the I.O had recommended the disposal of the case under ‘C’ Class but ADPP did not agree with his recommendation therefore, challan was submitted without any material available on record to connect the applicant with the commission of offence; per learned counsel, the case of applicant requires further probe.

            Conversely, Syed Meeral Shah, learned D.P.G for the State and Mrs. Razia Ali Zaman Khan, learned coun                                                                                  sel for complainant vehemently opposed the bail plea of the applicant on the ground that his name appears in the FIR and there is sufficient material connecting the applicant with the commission of offence. In support of their contentions, they have relied upon the cases reported as 1. Karim Haider and others Vs. The State (1986 SCMR 938), 2. Amir khan Vs The State (1970 SCMR 789), 3. Iltaf Vs. Asif and another (2004 P.Cr.L.J 1799).

            Heard learned counsel for the parties and perused the record.

            Upon a perusal of FIR, it appears that this incident had taken place on 24.2.2010 at 1315 hours whereas the FIR was lodged on 20.5.2010 i.e. after delay of about three months without any plausible explanation. Even from the contents of FIR, it appears that at the time of incident none amongst the accused was armed with any weapon or with any tool which could be used as a weapon. There is general allegation that accused Prem, Shevo and Rajo caused kicks and fists blows on the head, chest and stomach of the deceased. The complainant or either of PWs did not alleged in FIR or in their statements that accused intended to cause death of the deceased. It appears that this is a border line case and it is yet to be determined as to whether offence would fall U/s 319 or 302 PPC. However, there is another aspect of the case i.e. medical certificate. Per FIR the incident took place on 24.2.2010 at 1315 hours whereas from the bare reading of provisional medical certificate, it appears that date of incident has been shown on 23.2.2010 and duration of injury is shown as 12/18 hours. In final medical certificate, nature of injury No.1 has been declared as Shujjah-i-Khafifah. Upon perusal of letter dated 14.5.2010 written by Registrar Medical Unit-II, it appears that on 24^th February 2010 deceased Amernath was admitted in Medical-III (Now Medical-II) under Registration No.37554 as a case of “Hypatic Encephalopathy”. He was examined by Professor Sohail Ahmed Almani and Dr. Santosh Kumar thoroughly and they confirmed the diagnosis. Same letter further reveals that such information with regard to the serious illness of the deceased was sent to the higher authorities and then deceased left the Ward against medical advise (LAMA) with relevant Ward card including the case sheets and investigations. Record further reveals that a Special Medical Board was constituted by D.G Health Services Sindh, Hyderabad vide his letter dated 3.6.2010. However, the Special Medical Board who conducted the postmortem of deceased Amernath unanimously could not verify the cause of death of deceased Amernath. The postmortem of exhumed dead body of deceased Amernath was conducted by Special Medical Board consisting of M.S L.U.H, Hyderabad Dr. Muhammad Akber Qazi and Dr. Naseer Shaikh and Police Surgeon Hyderabad. In their provisional conclusions they unanimously opined that bone skeleton did not reveal any evidence of violence.

            Since the cause of death is shrouded in mystery, the FIR is belated by about three months and at the time of occurrence, accused were admittedly empty handed and none amongst the PWs have alleged that they caused injuries to the deceased with intention to commit his murder. Per medical certificates available on record, the deceased was a known case of hypatic Encephalopathy. Even it is not clear that when and where and under what circumstances, he passed away. The conduct of complainant also creates doubt with regard to the truthfulness of prosecution version as he remained mum for about three months and did not approach the police authorities and also removed the deceased from the hospital against advise. The case law relied upon by learned counsel for the complainant is quite distinguishable and no applicable to the case in hand.            

            For the foregoing reasons, I am of the considered view that case of applicant falls under sub-section (2) of Section 497 Cr.P.C and requires further probe as there are no reasonable grounds to believe that he has committed an offence punishable with death or imprisonment for life. Consequently, this application is allowed and the applicant is directed to be released on bail upon furnishing solvent surety in the sum of Rs.100,000/- (One lac) and P.R Bond in the like amount to the satisfaction of the trial Court.

            The observations made hereinabove are tentative in nature and will not prejudice the case of either party.

JUDGE

Tufail