IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
CRL. BAIL APPLICATION NO. S-940 of 2010
Date of hearing: 22.08.2011
Applicant : Ghulam Nabi alias Papu, Kori Memon through Mr.Ghulam Shabbir Dayo Advocate.
Respondent: State through Mr. Zulfiqar Ali Jatoi, Deputy
Prosecutor General.
Complainant: Khadim Hussain, Complainant, through
Mr.Dareshani Ali Haider Ada Advocate.
Muhammad Ali Mazhar--J., The applicant has brought this post arrest bail in Crime No.58 of 2010, lodged under Section 302, 147, 148, 427, 504, 337-A (i), 337-F (i) and 114 P.P.C at Police Station Abad District Sukkur.
2. Succinctly, the facts of the prosecution case as described by the complainant Khadim Hussain in the FIR are as under:-
“Complaint is that deceased Allah Wadhayo was my brother-in-law. He was labour. About one month back, one boy of our Shoro community and one boy of Kori community played race, our Shoro boy won the race, on which Gul Hassan Kori and others annoyed and time to time used to exchange harsh words to the people of Shoro community. On 1.5.2010, I was available at my cabin and Allah Wadhayo, his sons each Asadullah and Sanaullah were also present at their Ice shop. It was 6.50 of evening, when Munawar having thick donkey stick, Ghulam Nabi having cot stick in hand, 3.Gul Hassan, 4.Irfan, 5.Anwar, 6.Fida Hussain, 7.Shahid, 8.Mehboob with lathis, all Kori Memon by caste came. Anwar Kori instigated all the accused persons to commit the murder. On his instigation, accused Munawar alias Diloo, 2.Ghulam Nabi alias Papoo, 3.Ghul Hassan, 4.Irfan Wazir and others started causing lathis blows to my brother-in-law Allah Wadhayo and accused Fida Hussain caused lathi blows to Asadullah and accused Shahid caused lathi blows to Asadullah and accused Shahid caused lathi blows to Sanaullah and accused Mehboob caused lathi blows to me as well. We all had become injured and the blood was oozing from our heads and also sustained injuries on the other parts of the bodies. My brother-in-law Allah Wadhayo had sustained serious injuries on head. We all cried. On cries, our elder Rasool Bux came there. Thereafter we brought the all injured persons at PS, from where after receiving the letter for treatment, went to civil Hospital, Sukkur. Where I and other injured persons got treated as Allah Wadhayo was seriously injured, hence, he was referred from Civil Hospital, Sukkur to Larkana Hospital for treatment, we removed him to Larkana and got him treated. On the last night he succumbed to injuries and expired. Today in the morning, we brought the dead body of deceased in presence of witnesses Asadullah and Sanaullah, now have come and complained that above accused persons with their common intention, arming with lathis and by committing riot, on the instigation of Anwar caused us lathis blows and injured us and Irfan, Munawr alias Diloo and Ghulam Nabi alias Papoo, Gul Hassan and others committed the murder of Allah Wadhayo.”
3. I have heard learned counsel for the applicant, complainant and learned Deputy Prosecutor General for the State.
4. The learned counsel for the applicant argued that there is a delay of three days in lodging of FIR, which has not been satisfactorily explained by the complainant. On 09.09.2010, co-accused Fida Hussain and Shahid Hussain have been granted bail by this Court. Learned counsel further argued that on 08.05.2010, complainant Khadim Hussain lodged his NC report, in which, he stated that Allah Wadhayo, Asadullah and Sanaullah had sustained injuries but has not given the name of any accused that who caused the injuries. Learned counsel further argued that there are counter cases between the parties for the same incident as on 08.05.2010, Shahid Hussain lodged his NC report at Police Station Abad, which is now FIR No.141/2010, in which, it is reported that he, Irfan, Khalid, Mst.Shakeela and Gul Hassan sustained injuries at the hands of complainant party and were referred to G.M.M.C, Hospital, Sukkur for medical treatment. Learned counsel went on to argue that there are counter cases between the
parties and five persons from the accused party had received injuries at the hands of complainant party, therefore, it is yet to be determined at the stage of trial that which party was aggressor. He further argued that in the FIR in question only general allegation and role has been assigned to the present applicant that he along with co-accused Munawar, Gul Hassan and Irfan caused lathi injuries to deceased Allah Wadhayo while in the NC and postmortem report only three injuries were found on the body of deceased and injury 1 and 2 were declared fatal and sufficient to cause the death of the deceased. It is not clear as yet that who has caused the fatal blow which resulted the death of the deceased Allah Wadhayo. It was further averred that the applicant was arrested on 11.5.2010 and the alleged weapon was recovered after delay of five days of his arrest which was not found blood stained. He next contended that this is a fit case of further enquiry so far as it relates to the present applicant and in support of his arguments, the learned counsel relied upon 1980 SCMR 784, (Jaffar and others vs. State), in this case honorable supreme court in a murder case accepted the contention of the bail applicant that from the available material it could not be said as to who caused the fatal injury which left room for consideration as to the common intention of the others accused to kill the deceased and therefore it was a case of further enquiry under section 497(2),Cr.P.C. This contention was accepted and the applicant was allowed bail by honorable supreme court. He next relied upon 2004 SCMR 864, (Yaroo vs. State) in this case also the honorable supreme Court in a case of murder held that the allegations against the petitioner are of general nature. No injury whatsoever had been attributed to him. He is in jail for last more than one year, therefore, the petitioner was admitted to bail. The learned counsel referred to another case law reported in 2002 P.Cr.L.J 494, (Shafi Muhammad vs. State), in which, learned single judge of this Court held in a murder case that medico-legal evidence though was in accordance with the ocular account but the fact that as two of the injuries inflicted upon the deceased had been certified to be sufficient to cause his death. It is yet to be seen as to who had given the fatal blow since admittedly only one blow had been attributed to the applicant. In this murder case also bail was granted. He next referred to 2011 MLD 555 (Hyder Bukhsh vs. State), in this case also the learned single judge of this court in a murder case held that injuries suffered by the deceased resulted from the blows of all the accused. Question as to who had caused fatal injury to the deceased was yet to be determined. The counter case against the complainant party was also registered so it still remains undecided as to who was aggressor or victim. The accused was granted bail in this case also being a case of further enquiry.
5. So far as the plea of counter case is concerned, the learned counsel relied upon 2011 SCMR 606 (Abdul Hameed vs. Zahid Hussain alias Papu Chaman Patiwala and others), in which the bail granted to the private respondents on the ground of counter case was challenged in the apex Court, in which, the honourable supreme court held that High Court had granted bail to the respondents on the ground that there were counter cases between the parties and it was yet to be determined as to who was the aggressor, therefore, their case falls within the ambit of section 497 (2), Cr.P.C requiring further enquiry. It was further held that the incident of both the FIRs took place on the same date time and place. Such point, however, could be properly threshed out at the time of trial but presently no exception could be taken with regard to said position. No tentative findings could be given as to which party was the aggressor. High Court in circumstances, was justified in granting bail to the respondents. In another judgment reported in 2011 MLD 908 (Qadir Bux vs. State), the learned single judge of this Court held that the case was of two versions and as to who was aggressor was yet to be determined. Bail had already been granted to one party. If one party was granted bail, the other party is also entitled to the same relief in case of counter version, therefore, the accused were admitted to bail.
6. The learned DPG opposed the bail application on the ground that the present applicant along with three other accused caused fatal blows to the deceased, which resulted his death. He further argued that cot stick was recovered from the present applicant and Asadullah and Sanaullah both have supported the version of the complainant in their statements recorded under section 161, Cr.P.C.
7. The learned counsel for the complainant argued that mere existence of a cross cases could not be a sufficient ground for grant of bail. He further argued that sufficient material is available on record to connect the applicant with the commission of crime and two eye witnesses Asadullah and Sanaullah both supported the version of the complainant. He further argued that three injuries were found on the body of the deceased and injury No.1 and 2 were declared to be sufficient for causing the death. However, he concedes that the complainant party is already on bail in the FIR No.141/2010 lodged by the accused party. Nevertheless, he argued that the applicant party lodged the FIR on 06.09.2010. This argument was rebutted by the learned counsel for the applicant that on the very same day NC report was lodged but the police officers were not registering the FIR, therefore, an application was moved before the justice of peace for the registration of FIR and such fact is clearly mentioned in Column No.05 of the FIR, therefore, there was no delay on the part of complainant in the FIR No.141/2010.
8. After hearing the arguments and examining the case law referred to by the learned counsel for the applicant, I am of the view that in the FIR general allegations have been leveled against the applicant that he along with three other co-accused caused lathi blows to the deceased Allah Wadhayo and it is also a matter of fact that the postmortem report discloses three injuries out of which injury No. 01 and 02 were declared fatal, but it is again a matter of further enquiry that who had caused fatal blow as nothing is mentioned in the FIR to show that who caused fatal injury to the deceased Allah Wadhayo, which resulted his death. It is also an admitted fact that counter case for the same incident has been lodged by the accused party being Crime No.141/2010 and the learned DPG and learned counsel for the complainant both admitted that in that FIR, the accused party has already been extended the facility of bail, therefore, it is yet to be determined that who was the aggressor and who was the victim. The case law relied upon by learned counsel for the applicant relating to the question that who caused the fatal injury to the deceased is quite applicable in the present facts and circumstances. It is also a fact that the postmortem report shows only three injuries while in the FIR it has been alleged that the present applicant along with three other accused have caused blows to the deceased, which shows that at the same time four persons caused the blows to the victim while in the postmortem report only three injuries are shown which fact is also yet to be determined. I am profusely fortified by the enlightened dictum laid down by the honorable supreme court reported in 1980 SCMR 784, in which the bail was granted in a murder case on the ground that the material on record not showing that which of the accused caused fatal injury leaving room for consideration regarding common intention of other accused to kill the deceased. The another decision on this point is also helpful to the applicant for bail, which is reported as 2004 SCMR 864, in which again the honorable supreme Court held that allegations against the accused were general in nature, no injury whatsoever to the deceased has been attributed to the accused, therefore, the accused was granted bail.
9. The basic concept of bail is that no innocent person’s liberty is to be curtailed until and unless proved otherwise. Principle of law is that every accused is innocent person until his guilt is proved and it is also a well settled principle that law is not to be stretched in favour of the prosecution but benefit of doubt will go to the accused even at bail stage. Essential pre-requisite for the grant of bail by virtue of sub-section (2) of section 497, Cr.P.C is that the Court must be satisfied on the basis of opinion expressed by the police or the material placed before it that there were reasonable grounds to believe that the accused was not guilty of an offence punishable with death or imprisonment for life. It is also a well settled principle that at the stage of bail deep scrutiny of evidence is not permissible nor it is the requirement of law. However, this question can not be decided in vacuum and the Court has to look at the material available for arriving at a tentative opinion as to whether the accused is prima facie connected with the commission of the offence or not.
10. For the foregoing reasons, I am of the considered view that this is a fit case of further inquiry and at present, there are no reasonable grounds for believing that the applicant has committed a non-bailable offence, therefore, the applicant is granted bail subject to furnishing solvent surety in the sum of Rs.200,000/- and P.R bond in the like amount to the satisfaction of the trial Court.
11. Bail application stands disposed of in the above terms.
Sukkur
26.8.2011 Judge