ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No. 79 of 2009.   

Date	Order with signature of Judge

For hearing

06.03.2009.

                        Mr. Habibullah G. Ghauri, Advocate for the applicants.

                        Miss. Rubina Dhamrah, State counsel.

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                        Applicants, Niaz Hussain and Ayaz Hussain have approached this court, challenging the order of learned Sessions Judge, Dadu, dated 23.01.2009, who has declined them bail in case crime No.364/2008, P.S Mehar, registered under section 324, 148, 149, 114, 504 P.P.C.

                        On 11.11.2008, complainant Manzoor Mirjat, lodged above F.I.R, with P.S Mehar; which reads as under:-

                        “We harvest paddy crop of Hidayatullah Depar on wages. The matrimonial dispute between Hidayatullah Depar and Dur Mohammad Depar is going on and due to this Dur Mohammad and Hidayatullah Depar were got annoyed with each other and are not on talking terms.  Dur Mohammad Depar and others were restraining us from harvesting paddy of Hidayatullah on wages but we told them that since they were related inter-se and we are only laborers and having no concern with dispute of the parties hence we told them further that they should not restrain us. At this, they also got annoyed with us. Yesterday on 10.11.2008, early in the morning I alongwith my brother Wahid went for harvesting and after finishing word we were retuning to our village and when we reached in-front our house where Mst. Amiran wife of Dur Mohammad Depar and Ranjhan son of Mohammad Umar Depar were standing in the street and it was 3.00 p.m. The accused Niaz Hussain Depar with repeater, Dur Mohammad Depar with gun, Mukhtiar Depar with repeater, Himath with gun, Ayaz Hussain Depar with gun, Zulfiqar alias Bhutto Depar with gun, all resident of Darhoon Gorar, Taluka Mehar, came there and abused us on the round that they had restrained us from harvesting paddy crop of Hidayatullah but to no avail. Saying so, accused Dur Mohammad instigated others to kill us and on the instigation accused Dur Mohammad, accused Niaz Hussain fires from his repeater with a view to kill my brother Wahid which hit on his chest and he raised cry and fell down. Accused Mukhtiar fired from repeater directly with a view to kill me which hit on my left leg and I raised cry and fell down and in the meantime Mst. Amiran raised cries, hence accused Ayaz fires from his gun with a view to kill Mst. Amiran and fire hit Mst. Amiran on her waist and abdomen and she also raised cry and fell down. On our cries and gun reports the villagers came running and we also pleaded before the accused in the name of Allah, hence accused went away by abusing.  Thereafter, we arranged conveyance and obtained letter for treatment from police station and the doctor of Mehar hospital referred us to Larkana and Mst. Amiran was referred to Dadu and she was taken by her relatives, while we shifted to Chandka Hospital, Larkana, where we remained under treatment and after stoppage of blood today on 11.11.2008, I have shifted myself to police station and now I lodge report that the above named accused in their pre-concert duly armed with weapons due to harvest of paddy crop fired upon me, my brother Wahid and Mst. Amiran with a view to kill and thereby caused us injuries. I am complainant, investigation may be done.”

                        Learned counsel for the applicants contended that the F.I.R is delayed for 21-hours, and no plausible explanation with regard to such delay has been furnished. He next contended that injured Waheed and Mst. Amiran have sustained the injuries and there is inconsistency in between ocular and medical evidence. He further argued that  no incriminating article has been recovered from possession of applicants connecting them with commission of alleged offence. Further that there is parties are on disputed terms with each other over matrimonial affairs and property. Learned counsel further contended that there are counter cases between the parties and in view of counter cases between the parties it is yet to be determined at the time of trial, as to which party is aggressor.  He further disclosed that applicant/ accused Ayaz Hussain had also sustained injuries on his neck and this fact has been disclosed in the counter case vide F.I.R No. 368/2008. In that F.I.R it is alleged that Hidayatullah fired upon present applicant Ayaz Hussain which hit on his neck. He submitted that accused of counter case, namely, Hidayatullah, Manzoor and Waheed have been granted bail by learned trial court. He lastly argued that co-accused Himath and Mukhtiar have also been admitted to interim pre arrest bail by trial court. He has relied upon case of Iftikhar-ul-Haq and 3 others v.  The State (1996 SCMR 1845).

                        Learned State counsel frankly conceded to the grant of bail to applicants/ accused, in view of the fact that there are counter cases between the parties and accused of counter case have been admitted to bail.

                        Two F.I.Rs have been registered from both the parties and both the parties have received injures, hence it is case of two counter versions arising from the same incident; one given by the complainant in F.I.R vide crime No. 364/2008, and the other given by accused party in F.I.R No. 368/2008, of PS Mehar., District Dadu.  In view of counter cases the question as to which version in the two F.I.Rs is correct and which party is aggressor and which party is aggressed against and this case be decided by trial court only after elaborate evaluation of the evidence recorded by it and not at the bail stage. In such cases normally, bail is granted on the ground of further enquiry for the reason that question as to which version is correct is to be decided when both the parties lead evidence. In these circumstances  where both the parties registered cases against each other, both the parties sustained injuries, and both the parties admit enmity, medical certificates have been issued to both the parties, and specially one party has been granted bail to by the learned trial court and other party has been declined bail which amount to injustice. In cases of counter versions, normally plea of private defence is taken giving rise to question who was aggressor party and which party is aggressed. Under these circumstances a case is made out for grant of bail to applicants on the ground of further enquiry as contemplated under section 497 subsection (2) Cr.P.C, therefore, they are granted bail on their furnishing solvent surety each in the sum of Rs.200,000/- each and P.R bond in the like amount to the satisfaction of trial court.  However, the observations made hereinabove are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial court which is free to appraise the evidence strictly according to merits of the case.

                                                                                                            Judge