ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No.  S-  238 of 2012.

Date of hearing

Order with signature of Judge

 01.02.2013.

            Messrs Habibullah G. Ghouri, and Ahsan Ahmad Quraishi, Advocates for the applicant.

            Mr. Abdul Rasheed Abro, Advocate for complainant.

            Miss. Shazya Surahyo, State Counsel.

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Muhammad Shafi Siddiqui, J:     Through this bail application, the applicant Riaz Magsi has applied for bail, in crime No. 137/2011, of P.S Shahdadkot, registered under Sections 302, 337-A (i), 337-F (i), 148, 149, 337-H (2), 114 P.P.C.

2.         The allegation against the present applicant Riaz as per F.I.R lodged by complainant Ameer Ali, is that he on the instigation of co-accused Azizullah caused lathi blows to deceased Qurban Ali and P.W Sikander Ali which hit Qurban Ali on his back and Sikander Ali on his head and arms; while co-accused Mashooque Ali is alleged to have inflicted lathi blow to Qurban Ali on his head. The motive behind the incident as setout in the F.I.R is that some amount of deceased Qurban Ali was outstanding against accused Mashooque Ali and there had been exchange of harsh words between them prior to this incident.

3.         It is contended by the learned counsel for the applicant that the applicant has not been assigned any specific role in terms of the contents of the F.I.R. It is further contended that the contents of the F.I.R reveal that one accused Azizullah raised “Hakal” and instigated other accused persons to apprehend and kill Qurban Ali and not to leave him. Such specific role was assigned to one Azizullah and specifically on his instigation one Mashooque Ali inflicted lathi blow to Qurban Ali with intention to kill. It is further contended that contents of the F.I.R reveal that a general kind of allegations were leveled against accused Riaz and Abdul Razzak, who are stated to have caused lathi blows to Qurban Ali and Sikander Ali, but it is not known that whose lathi hit as fatal injury on Qurban Ali on his back and head. It is further contended by the learned counsel that in terms of the medical report of Qurban Ali it is opined by Medico Legal Officer that the death occurred due to extra dural haemorrhage, result of “injury No. 1”, and such injury No.1 as contended by the learned counsel is defined by medico legal officer as abrasion and swelling on parietal region. It is contended by the learned counsel that the fatal injury in-fact is alleged to have been caused by and could be attributed to accused Mashooque Ali and as such the fatal injury could not be attributed to the present applicant. It is further contended by the learned counsel that in view of such medical report and the contents of the F.I.R it has become case of further enquiry. Learned counsel has further submitted that although the accused came with explosive firearm but since it was not used and only lathis are alleged to have been used, therefore, the intention is apparent, that the accused had not come to the site for the purpose of causing death to Qurban Ali, otherwise straight fire could be made; and only at the most Section 315 P.P.C could be attributed, which is Qatl shibh-i-amd, i.e. causing death without an intention and the punishment as prescribed under Section 316 P.P.C is diyat and or may also imprisonment of either description for a terms which may extend to twenty five years as Ta’zir. Learned counsel for the applicant relied upon case of Meeran Bux v. The State and another (P.L.D 1989 Supreme Court 347), in terms whereof it has been held by the Honorable Supreme Court that the injury alleged to have been caused by accused to the leg of the deceased by gunshot was according to the postmortem report neither fatal nor was caused on the vital part of the body and was declared by medical officer as simple. Relying on this case law learned counsel submits that since the applicant is also alleged to have caused lathi blow on the back of deceased, therefore, the injury allegedly caused by applicant cannot be considered as fatal as it has not hit the vital part of the body.

4.         On the other hand learned Advocate for the complainant submitted that the principle accused Azizullah alongwith other co-accused with specific motive and intention reached at site and he instigated all the accused, who contributed towards causing injuries which also include fatal injuries to Qurban Ali, who expired. Learned counsel for complainant has relied upon the case of Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another (1999 P.Cr.L.J 01), in terms whereof it is held that accused was, therefore, in terms of the vicarious liability and constructively liable for the murder of the deceased by application of Section 34 P.P.C, although the deceased was hit by the co-accused. Learned counsel for complainant also relied upon case of Ehtisham-ul-Haq v. The State (2009 P.Cr.L.J 1388), which suggests that deeper appreciation of evidence was not permissible at bail stage.  Similarly, the learned counsel has relied upon case of Moula Bux v. The State (2009 P.Cr.L.J 472), which also prescribe that no deeper appreciation of evidence was permissible at bail stage. Lastly, he relied upon case of Muhammad Rafique and 4 others v. The State (2008 P.Cr.L.J 351); in terms whereof the paramount consideration as held by the Court for deciding the bail application was that offence under Section 34 P.P.C or 149 P.P.C should be determined, whether the accused was a member of unlawful assembly and whether the offence had been committed in furtherance of common object. 

5.         Learned State Counsel has adopted the arguments advanced by learned counsel for the complainant.

6.         I have heard learned counsels and perused the record.  The case of the applicant is based on the accusation leveled in the F.I.R and the medical report that has come on record. Though it is vehemently argued that specific injury has not been assigned to the present applicant; he inflicted lathi blows to Qurban  Ali and Sikander Ali, which hit Qurban Ali on his back and Sikander Ali on his head ands arm. This may at the most could take me to the tentative fact that  applicant caused lathi blows to Qurban Ali, which hit him on his back and Sikander Ali on his head and arm; whereas on instigation of accused Azizullah who raised “Hakal”, accused Mashooque Ali caused lathi blow to deceased Qurban Ali with intention to kill. I am conscious of the fact that I cannot go deeper in the evidence so that I may not jump at the conclusive opinion so far the injury that has caused death to the deceased. I am only to tentatively assess as to whether in view of the facts and circumstances, the case is such that the applicant is entitled to bail or not. I have very minutely and carefully examined the postmortem report dated 24.8.2011; in terms of this postmortem report, it is described as under:

                        “From the external as well as internal examination of deceased Qurban Ali son of Muhammad Yousif Magsi, I am of the opinion that his death has occurred due to extra dural haemorrhage resultant of injury No.1, the injury No.1 individually and others are collectively sufficient to cause death in ordinary course of nature. The injuries are antemortem in nature and caused by hard blunt substance.”

7.         On the last date of hearing a question was put to the learned counsel for the applicant as to what was the injury No.1 and injury No.2 and 3, as suggested by the medical officer. Today the said report of 19.8.2011, has also been placed on record, which suggests that injury No.1 as abrasion and swelling on parietal region. This abrasion and swelling on parietal region is claimed to be injury No.1, which somehow do not match with the opinion of the medico legal officer dated 24.8.2011, in terms whereof the death was occurred due to extra dural haemorrhage result of injury No.1. Surely a person cannot die due to abrasion and swelling. In terms of the contents of the F.I.R the lathi blow caused by one Mashooque Ali to the victim Qurban Ali with  intention to kill, which hit Qurban Ali on his head and blood started oozing from him. The injury No.1, if at-all only caused death, then certainly the injury No.1  as shown in the report dated 19.8.2011, is only to the extent of abrasion and swelling on parietal region, thus the latter part of the opinion of the postmortem on dated 24.8.2011, which goes on to say that the injury No.1 individually and others collectedly are sufficient to cause death in ordinary course of nature has to be given weight as only abrasion and swelling could not cause death individually. Thus, at this moment in terms of the opinion of the medical officer it is to be tentatively assumed that it was the collective blows including the blow of accused Mashooque Ali which was inflicted on the head with intention to kill are conclusively and collectively responsible for such fatal injury.

8.         The case of Meeran Bux (supra), is somehow distinguishable, as in the said case the injury is alleged to have been caused by the accused to the leg of deceased which was according to postmortem report neither on the vital part of the body, nor was fatal, whereas on the other hand in present case in terms of the medial report it was the collective blows, which were held to be sufficient to cause death of the victim.

9.         Without deeply appreciating the evidence, I am of the view that in view of the facts and circumstances of the case, the applicant is not entitled to concession of bail, and accordingly the bail application is dismissed.

Judge