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Criminal Bail Application No. 1011 of 1985, decided on 16th September, 1985.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of‑‑Both parties sustaining injuries but such fact suppressed by both parties in their counter‑reports‑‑Applicant although shown as duly armed with hatchet both in F.I.R. and police statements and having caused injuries to descased yet such statement contradicted by post‑mortem report‑‑Held, a case of further inquiry, in circumstances‑‑Applicant allowed bail.

1985 P Cr. L J 265; 1975 S C M R 39; 1985 S C M R 382; PLD 1985 S C 182; 1984 P Cr. L J 590; 1984 P Cr. L J 3049; P L D 1984 Quetta 144 and 1983 P Cr. L J 1999 ref.

Usman Ghani Rashid for Applicant:

A.A. Muhammad Ali, Asstt. A.‑G. for the ,State.

This is en application for bail in a case pending in the Court of Additional Sessions Judge, Tharparkar under sections 302, 147, 3.23, 324 and 504,P.P.C.

Briefly stated the prosecution case is that complainant Yasin is a Transporter and his buses ply on route between Naukot to Mirpurkhas. Haji Nazar Muhammad also runs one bus on the same route and two days before the incident then was exchange of hot words between their drivers over the timings. On 5‑6‑1985 complainant Yasin went to bus stand while he was sitting there, the bus of Haji Nazar Muhammad arrived from. Mirpurkhas, from which Hap Nazar Muhammad applicant Muhammad Saleem, Muhammad Jamil, and Muhammad Boota got down. It is alleged that they started abusing to complainant. Whereupon, Muhammad Salim gave hatchet, blow to Addul Hameed on his head, while Hap Nazar Muhammad gave one blow with rod on the head of complainant. In the meantime Shamsher came from the Hotel of Muhammad Sharif to intervene and he was also given hatchet blow by the applicant Muhammad Salim, on his head and Shamsher fell down on the ground. In the meantime, P.W. Muhammad Salim son of Abdul Hameed came running and Boota caused Lathi blow on his head. Thereafter, Abdul Razzaq, Muhammad Jamil son of Noor Muhammad, Muhammad Anwar came and intervened. Yasin went and lodged report at Police Station Tharparkar at 4‑35 p.m. The case under sections 307, 324, 323 and 504/34 was registered. Abdul Hameed died on the same date; therefore, the case was converted to section 302, P.P.C.

On the same date, Haji Nazar Muhammad lodged report at 4‑40 p.m. at the same police station in which he has stated that Hamid, Muhammad Salim son of Hameed, Akhtar, Shamsher Sadhar Rangar, Muhammad Jamil and Yasin who were armed with Lathis caused injuries to them at the Bus stand.

Mr. Usman Ghani Rashid, learned counsel, appearing for the applicant submitted that co‑accused have been granted bail by the learned Sessions Judge and there are two counter‑versions of this incident. He has also argued that according to F.I.R. the allegation is that the applicant caused hatchet injuries to deceased Abdul Hamid. But according to medical certificate the injuries were caused by blunt and hard substance to Abdul Hamid and Shamsher. Therefore, there is conflict between ocular testimony and medical report. He has further contended that from accused side complaint of the counter‑case of Haji Nazar Muhammad who is father of the present applicant sustained four injuries and 3 other persons namely, Jamil, Ashraf and Boota also sustained injuries which have not been explained by the complainant. He has cited 1985 P Cr: L J 265.

Mr. A.A. Hashmi, learned counsel appearing for the complainant, submitted that the applicant after incident absconded. His contention is that in the F.I.R. it is not clearly mentioned as applicant caused injures to Abdul Hamid and Shamsher by sharp side of hatchet. He has cited 1975 S C M R 39 and submitted that the bail could not be granted on the ground of the counter‑cases. He has also cited 1985 SCMR 382 and P L D 1985 S C 182 and submitted that this is not a case of further inquiry. He has also referred the following case‑laws:

1984 P Cr. L J 590;

1984 P Cr. L J 3049;

P L D 1984 Quetta 144 and

1983 P Cr. L J 1999.

Mr. A.A. Muhammad Ali, learned A.A.‑G. for the State submitted that this is a case of free fight which appears to have been flared up suddenly in which both the parties are sustained injuries, therefore, he has no objection to the grant of bail. However, he has argued that the learned First Additional Sessions Judge in his order has stated that applicant has misused the concession of interim bail as he did not join investigation. Therefore, the direction be issued to the trial Court to cancel the bail, if the applicant is found absent on misusing the liberty. The place of incident is admitted. Both the parties sustained injuries and in both the reports it is not stated that they also caused injuries to the other side.

It is, clearly stated in the F.I.R. and Police statement that applicant was armed with hatchet and he caused injuries to deceased and Shamsher, which fact has been contradicted by post-mortem report, which shows that deceased sustained two injuries on paratial region and back of chest caused by blunt substance. The injury on the Shamsher have also been opined to have been caused by hard and blunt substance. The contention. of Mr. Iqtidar Hashmi that it is specifically not mentioned that accused caused injuries to the complainant by sharp side, cannot p be sustained on the simple ground that nowhere it has been mentioned in the statements that applicant caused injuries with blunt side of hatchet or handle of the hatchet.

So far absconsion is concerned, the incident took place on 5‑6‑1985, the applicant approached the High Court on 18‑7‑1985 and he was granted interim bail till 1‑8‑1985. . He surrendered in the Court of learned Additional Sessions Judge, and he was remanded to custody, since then he is in Jail. In my view, he could not be deprived from the concession of the bail on the ground which is yet to be considered, by the Trial Court. Looking to the circumstances of the case, and injuries on the four persons from accused side and medical evidence, I am of the view that this is a fit case for further inquiry.

I admit the applicant to bail on furnishing one surety in the sum of Rs.50,000 and P.R. Bond in the like amount to the satisfaction of the Sessions Judge, Tharparkar.

S.G.D Bail allowed

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