Cr.B.A.
No.S-288 of 2007.
For hearing.
19.2.2008.
Mr.Bakhshan Khan Mahar for the applicant.
Mr.Abdul Haleem Qureshi for the complainant.
Mr.Muhammad Mahmood S. Khan Yousfi, Assistant
Advocate General for the State.
DR. RANA MUHAMMAD SHAMIM, J. Through this bail application, orders of two courts below have been challenged i.e. order dated 8.5.2007 passed by the Ist. Assistant Sessions Judge, Sukkur and order dated 1.6.2007 passed by the Additional Sessions Judge (H), Sukkur whereby the bail applications of the applicants were dismissed.
2. Brief facts of the prosecution case are that on 21.7.2007 at about 11-15 a.m. applicants Ghulam Hussain and Oghan armed with guns along with other companions armed with Kalashnikovs and guns, on the dispute of KARAP, entered the house of complainant and on the instigation of applicant Ghulam Hussain, other accused persons fired upon complainant party resulting injuries on the persons of complainant’s brother Riaz Ali and his daughter-in-law Mst.Rubina.
3. Learned counsel for the applicants submits that the applicants were arrested on 9.3.2007 and as per allegations spelled out in the F.I.R and 161 Cr.P.C statements of the prosecution witnesses/injured, the allegation against the present applicant No.1 Ghulam Hussain is only that though he was armed with gun, he instigated the other co-accused persons nominated in the F.I.R to make fire on the complainant party present at that time and consequent upon that firing of other co-accused as per F.I.R one Riaz Ali and Mst.Rubina were injured. He further submits that no specific role has been attributed either against applicant Ghulam Hussain or applicant Oghan s/o Mitho. He further submits that admittedly allegations against both of them are general in nature. He further submits that the complainant party in this case has attacked the accused persons. Consequently counter F.I.R No.24/2007 was lodged at Police Station, Abad on 10.2.2007 after obtaining order on 6.2.2007 from the Justice of Peace/Sessions Judge on their application under Section 22-A and B, Cr.P.C, as the police had refused to lodge their F.I.R. He further submits that earlier an F.I.R No.160/2007 under Section 302, PPC, was lodged by the close relatives of applicants against the complainant party, which is still pending investigation. He submits that against applicant No.1 Ghulam Hussain there is no other allegation except the allegation of instigation. Admittedly there is no material on the record to show that either applicant Ghulam Hussain or co-accused applicant Oghan has fired upon the injured Riaz Ali and Mst.Rubina and due to their firing they were injured. He relied upon the case of Sher Muhammad v. State (2004 YLR 121), Attaullah v. State (1999 SCMR 1320), Fazal Mahammad v. Ali Ahmad (1976 SCMR 391), Shafiqan v. Hashim Ali (1972 SCMR 682), Shoaib Mehmood Butt v. Iftikhar-ur-Haq (1996 SCMR 1845) and Abdul Mateen v. The State (SBLR 2007 Sindh 434) and submits that this court and the apex court in above-mentioned cases have granted bail on the ground of general allegations and on the basis of counter F.I.R.
4. Learned counsel for the complainant submits that the applicants are one of those who are nominated in the F.I.R No.11/2007; there is no delay in lodging the F.I.R; that applicant Ghulam Hussain was armed with gun at the time of incident and on his instigation the other co-accused persons nominated in F.I.R fired upon the injured Mst.Rubina, Riaz Ali and Khadim whereas allegation against applicant Oghan is general in nature that he also participated in the firing upon the complainant party. He further submits that Mst.Rubina sustained three multiple injuries on her upper left thigh and bullet injuries on the lower part of her right leg. Similarly Riaz Ali got three injuries on various parts of the body but the serious injury he sustained on his neck, which may cause death of the PW Riaz Ali. PW Khadim, sustained five injuries. He further submits that the counter F.I.R No.24/2007 was lodged after the delay of more than one and half month and the place of incident has been shown in one of the lands of Khuda Bux Jatoi who has not been examined by the Investigating Officer to support the version of the complainant. He submits that the F.I.R was lodged by one Hidayatullah who is the father of Izzat alias Babul accused in F.I.R No.11/2007. The said F.I.R was lodged only to save his son by the complainant and others and to camouflage the incident narrated in F.I.R No.11/2007. He has not denied the old enmity between the complainant party and the accused persons. He further submits that the version of the prosecution and the injured PWs was supported by the medical evidence on the record and the mashirnama also supports the prosecution case that the same was prepared at the place of incident shown in the F.I.R No.11/2007, that 15 empties were recovered from the place of incident and bloodstained samples were also taken for Chemical Examination from the place of incident, that counter F.I.R No.24/2007 has been classified in class “C”. He submits that the applicants were present at the place of incident who actively participated in commission of crime by instigating others. In support of his above submissions, he relied upon the cases of Muhammad Azam v. State (2001 YLR 1247), Liaqat Ali v. The State (2004 P.Cr.L.J 962), Malang Said v. State (2004 P.Cr.L.J 1087), Iltaf v. Asif (2004 P.Cr.L.J 1799). He submits that the applicants who after knowing that the F.I.R has been lodged against them have absconded and after more than one and half month they were arrested.
5. In reply to some of the submissions of the learned counsel for the complainant, learned counsel for the applicants submitted that the learned counsel for the complainant has contradicted himself that Izzat alias Babul is the son of Hidayatullah whereas in F.I.R No.11/2007 lodged by the complainant, the father’s name of Babul has been shown as Lal Bux. He further submits that in F.I.R only two injured persons have been shown as Riaz Ali and Mst.Rubina whereas the name of third injured person who is also witness, has not been shown as injured in the F.I.R. he also submits that as per F.I.R the injury to PW Riaz Ali has been shown on the shoulder in the F.I.R and not on the neck, which is contradictory in nature and creates serious doubts in prosecution version. He submits that if any doubt arises, the benefit of such doubt must go to the applicant even at the bail stage.
6. Learned Assistant
Advocate General supported the impugned bail orders passed by the two courts
below and submits that the F.I.R was lodged promptly and the delay if any has
been explained i.e. the distance between the place of incident and the Police
Station is seven kilometers; that the prosecution version has been supported by
the medical evidence and admittedly there is allegation of instigation against
Ghulam Hussain whereas the allegation against applicant No2 are general in
nature. Lastly, he submitted that the injuries though were not on vital part of
PWs Riaz Ali and Mst.Rubina but the intention of the applicants and co-accused
was to commit attempt to murder of the complainant party, that injuries so
caused attract the provisions of Section 337-F (iii) i.e. Jurh Ghayr-jaifah mutalahimah which is
punishable for three years. He submits that if the offence does not fall under
prohibitory clause that bail could also be refused if he participated in crime.
7. I have heard learned counsel for the parties as well as the
learned Assistant Advocate General, perused the record available on the case
file and gone through the case laws, that on his instigation of applicant
Ghulam Hussain other co-accused had fired upon the complainant party consequent
to that three persons Mst.Rubina, Riaz Ali and Khadim were injured, that there
is no material on record or with the police file to show that the applicants
Ghulam Hussain or Oghan fired upon the injured persons. The allegations against
both the applicants are vague, ill-founded and general in nature. Admittedly
there is a counter version and F.I.R No.24/2007 was lodged by the accused
persons against the complainant party, that the delay in lodging the said F.I.R
has been explained as the police refused to lodge the version of the accused
persons and consequently they approached to the Justice of Peace and after
obtaining order from the court, the F.I.R was lodged. There is no proof that
F.I.R No.24/2007, lodged by Habibullah, a close relative of the accused persons
was classified as “C” class but on the other hand the learned counsel for the
complainant himself admitted that NBWs have been issued against the complainant
and other persons by the competent court of law. As regards the case of Sher
Muhammad v. State (Supra), this court has held that when no specific role had
been attributed to the accused and on the allegations of general in nature the
bail was granted to the applicant. In case of Attaullah v. State (Supra), the
Hon'ble apex court not interfered with the bail granting order of the High
Court on the ground that the accused has not caused any injury to the
complainant party. In case of Shafiqan v. Hashim (Supra), the Hon'ble apex
court granted bail on the question of counter version to determine who was
aggressor. The bail so granted by the High Court was not interfered with. In
case of Fazal Muhammad v. Ali Ahmed (Supra), bail granted by the High Court on
the ground of counter version was maintained. In a case of Shoaib v. Iftikhar
(Supra), the Hon'ble apex court was pleased to hold that the case of two
counter versions arisen from the same incident one given by the complainant and
other given by the opposite party makes the case itself a case of further
enquiry which entitles to applicant for the grant of bail. In case of Abdul
Matin v. State (Supra), bail was granted by this court on the question of
counter version.
8. Admittedly the allegation against applicant No.1 Ghulam Hussain
is that of only instigation to other co-accused. There is no allegation against
both the applicants that they fired upon Riaz Ali, Mst.Rubina and Khadim and
consequent of their firing they were injured. The reliance made by the learned
counsel for the complainant is distinguishable. The case law relied upon by the
learned counsel for the applicants attracts and applicable which makes the case
of both the applicants is of further enquiry. Accordingly, the bail to both the
applicants is granted subject to their furnishing solvent surety in the sum of
Rs.100,000/- each and P.R. bond in the like amount to the satisfaction of the learned
trial court.
JUDGE
N.M.