IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Present;
Mr. Justice Amjad
Ali Sahito
Cr. Bail Appln. No. S – 344 of 2021
Applicants
: Abdul
Latif S/o Mocharo and Sadam Hussain S/o Allah Jewayo
Through Mr. Ubedullah Ghoto Advocate
Complainant : Bashir
Ahmed Mahar
Through Mr.
Muhammad Aslam Gadani
Advocate
Respondent
: The
State
Through Mr. Shafi Muhammad Mahar, DPG for the
State
Dated
of hearing: 16.08.2021
Date of
order : 16.08.2021
O R D E R
AMJAD ALI SAHITO, J – Through
this bail application, the applicants/accused seek post-arrest bail in Crime
No.15 of 2021 registered at Police Station Khanpur Mahar, District Ghotki for an
offences punishable under Section 302, 337-A(i), 337-F(i), 337‑H(2), 147,
148, 149 and 114 PPC. The bail plea of the applicants/accused has been declined
by learned I-Additional Sessions Judge (MCTC), Ghotki
vide order dated 03.06.2021.
2. The facts
of the prosecution case briefly stated are that on 21.03.2021, complainant
Bashir Ahmed Mahar lodged his report at Police
Station Khanpur Mahar that
there is old dispute going-on in between one Moula Bux and Mocharo over the
property, whereas, said Moula Bux
used to issue threats to Shah Nawaz for facilitating his rivals. On the date of
incident i.e. 18.03.2021, he (complainant) along with his uncle Shah Nawaz,
maternal-uncle Jumo alias Jamaluddin,
materal-cousin Karim Bux and cousin Khalid Ahmed on motorcycles were going to
visit their relatives at Bhaitoor, when reached on
the road leading from Shahpur to Bhaitoor
near Fateh Shakh, all of a
sudden they were confronted by accused Moula Bux alias Mouloo, Saeed Ahmed alias Saeedoo, Sadam (Applicant No.2), Altaf,
having kalashinikovs, Khaliq
Dino alias Ganhwar, Muhammad Waris
alias Warisoo empty handed, Taj
Muhammad alias Tajoo with lathi,
Abdul Latif
(Applicant No.1) with lathi and one unidentified
accused having gun. On the instigation of accused Khaliq
Dino alias Ganhwar, accused Moula
Bux alias Mouloo caused
Kalashnikov butt blows to Shah Nawaz on his head; accused Saeed
Ahmed alias Saeedoo caused butt blows to Shah Nawaz
on his right eye; accused Sadam and Altaf also caused Kalashnikov butt blows to Khalid Ahmed on
his left hand fingers and back of right shoulder; accused Taj
Muhammad alias Tajoo nd
Abdul Latif caused lathi
blows to Jumo alias Jamaluddin
on his left side of head and right shoulder. Thereafter the complainant party
entreated the accused persons in the name of Almighty Allah, then they went
away while making aerial firing escaped towards their houses and then the
injured persons were shifted to Khanpur Mahar hospital, from where the injured Shah Nawaz was
referred to Civil Hospital Sukkur who succumbed to
the injures in the hospital and after the post-mortem and interment, the
complainant appeared at police station and lodged his FIR.
3. Learned
counsel for the applicants/accused contended that the applicants/accused are
innocent and have falsely been implicated in this case by the complainant due
to enmity over the property; that as per FIR the allegation against the
applicant/accused Abdul Latif is that he was having lathi and caused injury to injured Jumo
alias Jamaluddin over left side of head and right
shoulder which was declared as “Shujah-i-Khafifah” under
Section 337-A(i) PPC, which is bailable; that the
role assigned to applicant Sadam Hussain
is that he along with co-accused Altaf caused kalashnikov butt blows to injured Khalid Ahmed on his left
arm fingers and back of left shoulder and as per final medical certificated
dated 18.03.2021 the Medical Officer has shown that the injury No.1 & 2 as
hurt of other Sections-II, which is also bailable. It
is further contended that the challan of the case has
been submitted by the police and the applicants/accused are no more required
for further enquiry; that in the circumstances, the applicants/accused have
made-out a case for further inquiry as envisaged under Section 497(2) Cr.P.C.
4. Learned
counsel for the complainant and learned DPG for the State prayed for dismissal
of instant bail application by contending that the name of the applicants/accused
are specifically mentioned in the FIR with the role that they actively
participated in the commission of the offence by causing lathi
as well as kalashnikov butt blows to injured Jumo alias Jamaluddin and Khalid
Ahmed, whereas, one person namely Shah Nawaz has been done to death in the same
incident, therefore, the applicants/accused are vicariously liable for the
offence, as such they do not deserve for the concession of bail. The offence
with which the applicants/accused have been charged
entails capital punishment.
5. I have
heard the learned counsel for the applicants/accused, learned counsel for the
complainant and DPG for the State and perused the record. From the perusal of
the record, it appears that both the applicants/accused have allegedly caused lathi as well as kalashnikov butt
blows to injured / PWs Jumo alias Jamaluddin
and Khalid Ahmed, respectively, whereas the injuries attributed to the present
applicants/accused fall under Section 337-A(i) PPC, which is bailable. The applicants/accused are
in jail and they are no more required for the purpose of investigation. The
question of vicarious liability will be determined at the trial when evidence
will be recorded before the trial court. In such circumstances, the applicants/accused
have made-out a case for grant of bail in view of Sub-section(2)
of Section 497 Cr.P.C. Consequently, the instant bail
application is allowed and the applicants/accused are enlarged on bail subject to
furnish solvent surety in the sum of Rs.100,000/- (One Lac) each
and PR bond in the like amount to the satisfaction of trial Court.
6. The
observations made hereinabove are tentative in nature and will not prejudice
the case of either party at the trial.
Judge
ARBROHI