ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. Bail Appln.  No.S- 379     of 2012

DATE

ORDER WITH SIGNATURE OF JUDGE

 

For Hearing

 

 

30.10.2012

 

Mr. Rafique Ahmed K. Abro, advocate for the applicant.

Mr. Qazi Mohammad Bux, State counsel.

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Naimatullah Phulpoto, J. -  Applicant/ accused Khathoor son of Hussain alias Hussain Bux seeks bail in crime No. 71/20112 registered at Police Station Thul,  under section 337-A(iii), 504, 34, PPC.    

            Brief facts of the prosecution case as disclosed in the FIR are, that on the day of incident, complainant along with his brother Ghulam Mohammad and nephew Khaleel were standing at Naseer Minor, where it is alleged that, at 11.00 a.m., accused Khathoor, Fazal Mohammad, Nazar Mohammad, Rasool Bux all sons of Hussain Bux by caste Banglani, armed with Sotis, appeared. It is alleged that, accused Khathoor abused the complainant party and stated as to why complainant party had used hot words over the cattle and declared that they will not be spared. It is stated in the FIR that accused Khathoor caused soti blows to the complainant which hit him below his eye. P.Ws gave the name of Holy Quran to the accused persons and complainant was saved. Accused ran away while abusing the complainant. FIR of the incident was lodged under the above referred sections. Matter was reported by the complainant on 15.5.2012. After receipt of medical certificate on 20.5.2012 it was incorporated in 154, Cr.P.C book.

            Accused Khathoor was arrested. After usual investigation challan was submitted against the accused under sections 337-A(iii), 504, 34, PPC. Bail application was moved on behalf of accused Khathoor in the Court of learned Civil Judge & Judicial Magistrate, Thul. The same was rejected vide order dated 19.6.2012. Thereafter applicant/accused Khathoor approached learned 1st Additional Sessions Judge, Jacobabad for same relief. Bail application was dismissed vide order dated 06.7.2012. Thereafter applicant/ accused approached to this Court for the similar relief.

            Mr. Rafique Ahmed K. Abro, learned counsel for the applicant has argued that this is the case of counter version. Applicant/accused Khathoor, regarding the same incident, had lodged FIR at Police Station Thul vide crime No. 76/2012 under Sections 337-F(v), 504, 34 PPC  and in the same crime, accused Ghulam Mohammad, Ghulam Ali and Khaleel Ahmed have been granted pre-arrest bail by learned Sessions Judge, Jacobabad vide his order dated 23.6.2012 mainly on the ground that it was the case of counter version yet it is to be determined which party is aggressor. He has placed reliance on the case of Abdul Hameed v. Zahid Hussain & others reported in SBLR 2012 SC 129 and has prayed for grant of bail to the applicant/accused.

            Mr. Qazi Mohammad Bux, learned State counsel, opposed the bail application on the ground that specific injury has been attributed to the applicant/accused Khathoor. However, he has admitted that this is the case of counter version.

            I am inclined to grant bail to the applicant/accused for the reasons that admittedly this is the case of counter version yet it is to be determined which party is aggressor. The alleged offence does not fall within the prohibitory clause of section 497, Cr.P.C. In the  counter case, pre-arrest bail has been granted to the accused by learned Sessions Judge, Jacobabad in criminal bail application No. 363/2012 vide his orders dated 23.6.2012. Under the law there will be the same and equal treatment and point of aggression is yet to be determined at trial. Malafide on the part of complainant is apparent as he has suppressed material fact of injuries received by accused. In the case of Abdul Hameed (supra) Honourable Supreme Court has been pleased to observe as under:-

            “We have gone through both the FIRs and find that incident of both the FIRs took place on 27.9.2009 at 2 A.M. The place of incident of both the cases has also been shown on footpath, corner of Street No. 6-B Suleman Azad Road, New Kalri, Karachi. From this position is prima facie clear that the incidents of both the FIRs took place on the same date, time and place. However, this point can be properly thrashed out at the time of trial but presently no exception can  be taken with regard to the said position. We have also examined both the FIRs and find that no tentative findings could be given as to which party is aggressor therefore in the circumstances the High Court was justified in granting the bail to the Respondents. The impugned order does not suffer from any illegality or irregularity as such it does not require any interference. The petition is dismissed. Leave refused.”

            Therefore, for my above stated reasons, while respectfully relying upon above authority I hold that case against applicant/accused prima facie, requires further enquiry as yet it is to be determined which party is aggressor. Therefore, bail is granted to the applicant/accused Khathoor subject to his furnishing solvent surety in the sum of Rs.100,000/- with P.R bond in the like amount to the satisfaction of trial Court.

 

                                                                                                Judge

 

Abid H.Qazi