ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Bail Appln. No.S-383 of 2013
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE. |
01.11.2013.
1. For orders on office objection.
2. For hearing.
Mr. Saleem Raza Jakhar, advocate for the applicants/accused.
Mr. Khadim Hussain Khooharo, Deputy Prosecutor General.
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Applicants/accused Abdullah and Abdur Razaque, both by caste Brohi, are on interim pre-arrest bail granted to them by this Court vide order dated 09.9.2013 in crime No.163/2013 of Police Station Ratodero, District Larkana, under Sections 324, 337-A(i), 337-F(i), 114, 147, 148 and 149, PPC. Today this bail application is fixed for confirmation or otherwise. The pre-arrest bail application of the applicants/accused was rejected by the learned Sessions Judge, Larkana vide order dated 05.9.2013, hence this bail application.
The brief facts of the prosecution case for the disposal of this bail application are that on 31.8.2013, complainant Ali Hassan appeared at Police Station Ratodero and lodged the F.I.R, alleging therein that there was his some quarrel with his cousin Abdullah over the matter of water and he was annoyed. On the day of incident, complainant alongwith his cousin Shah Muhammad and relatives Ali Jan and Abdul Wahab were sitting in the Otaque, when at about 10.00 a.m., they saw accused Abdullah armed with pistol, Rehmatullah with pistol, Muhammad Bachal and Abdul Razak having lathies. Out of them, accused Abdullah instigated to the rest of the accused to kill the complainant party and on his instigation Rehmatullah fired from his pistol, which hit to Abdul Wahab on his leg, accused Abdullah fired from his pistol upon Ali Jan, which hit him on his left thigh. Remaining accused caused lathi blows to Abdul Wahab and Ali Jan, on which they raised cries and then all the accused persons run away. The complainant brought the injured to police station and lodged the F.I.R of the incident.
Learned Counsel for the applicants/accused argued that the applicants are innocent and they have falsely been implicated in this case with malafide intention and ulterior motive. All the witnesses cited in the case are related to the complainant, therefore, false implication of the applicants in this case cannot be ruled out. He has further submitted that there are counter-cases between the parties, as from the side of the applicant Mst. Sazin has lodged F.I.R against the complainant party of this case, therefore, it is yet to be determined at trial as to which party is aggressor, till then the case of the applicants/accused requires further enquiry as contemplated under Section 497(2), Cr.P.C. He has further submitted that the injuries attributed to present applicants have not been declared by the medicolegal officer as dangerous and the injuries attributed to present applicants are on non-vital part of the body of injured persons. He has further submitted that in counter-case being crime No.166/2013 of P.S Ratodero the complainant party has been granted bail, therefore, the learned Counsel for the applicants while relying upon the case law reported in 1998 SCMR 1845 and 2010 P.Cr.L.J 379, has prayed for confirmation of pre-arrest bail.
Learned D.P.G., has opposed the grant of pre-arrest bail to the applicants/accused, on the ground that their names are appearing in the F.I.R and according to him they have played active role in the commission of the offence.
Heard the learned Counsel for the parties and perused the record.
There is no doubt that the names of the applicants are appearing in the F.I.R with allegation that at the time of incident accused Abdullah was armed with pistol, while accused Abdur Razaque armed with lathi. According to the F.I.R, accused Abdullah instigated to other accused and then fired at P.W Ali Jan, which hit him on his left side buttock, which is admittedly a non-vital party of body, but accused Abdullah did not repeat the fire, though the complainant party was completely at his mercy. It appears that accused had no intention to kill Ali Jan. The injury attributed to this applicant has not been declared by the medicolegal officer as dangerous. The allegation against accused Abdur Razaque is that he alongwith other accused caused lathi blows to P.Ws Abdul Wahab and Ali Jan. The allegation against accused Abdur Razaque appears to be general in nature. Even otherwise the injury attributed to Abdur Razaque has also not been declared as dangerous.
From the perusal of police papers it appears that there was some quarrel between the complainant and his cousin Abdullah over the matter of water, as such, it appears that the incident has occurred in spur of moment and due to this quarrel both the parties have registered cases against each other. From the record it appears that in the counter case being crime No.166/2013 of PS Ratodero, complainant party has been granted bail by the learned Additional Sessions Judge, Ratodero.
In my tentative opinion counter-version arising from the same incident, one given by the complainant in F.I.R No.163/2013 of PS Ratodero and the other given in F.I.R No.166/2013 of PS Ratodero lodged by the parties against each other are covered for grant of bail on the ground of further enquiry as contemplated under Section 497(2), Cr.P.C. In such cases, normally bail is to be granted on the ground of further enquiry for the reason that the question as to which version is correct is to be decided by the trial Court. In this case, challan has been submitted. As per challan-sheet, the present applicants/accused have been booked for the offences, for which the punishment does not fall within the prohibitory clause of Section 497, Cr.P.C except Section 324, PPC and the applicability of Section 324, P.P.C is to be determined at the time of trial, therefore, on this score the applicants have made out a case for bail. I, therefore, for the aforementioned reasons confirm the interim pre-arrest bail already granted to the applicants/accused on same terms and conditions.
The applicants are directed to appear before the trial Court to face trial.
JUDGE