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Criminal Bail Application No.372 of 1987, decided on 8th April, 1987.

---S.497--Penal Code (XLV of 1860), Ss.302, 307, 147, 148, 149, 423 504--Bail, grant of--No overt act assigned to accused except ineffective firing or a Lathi blow to a prosecution witness--No medical certificate available in police papers to show as to what type of injuries were sustained by prosecution witness--Counter-cases existing between parties--Accused admitted to bail in circumstances.

--S.497--Penal Code (XLV of 1860), Ss.302, 307, 147, 148, 149, 423 & 504--Bail, grant of--Accused allegedly caused a Lathi blow to deceased--Fact whether accused had common object to kill deceased with the main accused who inflicted fatal blow to deceased, yet to be seen--Bail granted.

---S.497--Penal Code (XLV of 1860), Ss.302, 307, 147, 148, 149, 423 & 504--Bail--Accused attributed main part of causing fatal injury to deceased with a fire-arm--Name of accused appearing in first information report and he was directly involved by eye-witness as well as by deceased in his dying declaration--Plea of alibi taken by accused doubtful--No explanation given by accused party in respect of injuries on person of deceased--Both parties suppressing their role in incident--Bail refused in circumstances.

Ismail H. Memon with Muhammad Ali Shaikh for Applicants.

S.Sarfraz Ahmed, A.A.-G. for the State.

The applicants are facing trial under sections 302, 307, 147, 148, 149, 323, 504, P.P.C. before the learned Sessions Judge, Sanghar.

The brief facts of the prosecution case are that on 1-2-1987 one Achar s/o Ahmed Gajoo lodged a report at 4.00 p.m. at P.S. Khipro, alleging therein that he is Zamindar and owns land in Deh Lunkhan. That on the day of incident he and his brother Shaft Muhammad were cutting fuel wood from Government land in front of their house. That at about 1.00 p.m. Aziz Rangar armed with revolver Mumtaz armed with lathi, Abdul Latif Rangar, Sadoo Rangar, Abdul Jabbar Rangar armed with guns, Munawar Rangnr with pistol, Ghaffar armed with lathi, came there while abusing the complainant and his brother. On reaching there Aziz Rangar tol.1 the complainant and his brother that the land was allotted to them against their claim, and complainant party wanted to occupy it under pretext of cutting wood, on which Shafi Muhammad told them to behave properly and not to abuse. There was exchange of harsh words between the parties, or commotion Dain Gajoo, Fateh Hingoro, Samano Hingero and others came running. On seeing them coming near, Mumtaz within the sight of above witnesses gave lathi blows to Shaft Muhammad, and as Shafi Muhammad turned Aziz Rangar fired revolver shot on the back side of Shaft Mi hammad, on which he fell down Abdul Latif, Sadoo and Jabbar fired their guns and Munawar fired with his pistol indiscriminately. Ghaffar gave back side hatchet blows and Sabir gave lathi blows to Fateh Muhammad. The complainant and above witnesses raised cries, on hearing gun shots and cries on which persons from surroundings came running raising 'hakals'. On seeing them, the above accused ran away with their weapons after abusing and firing in the air, then the complainant saw that his brother had gone unconscious and was bleeding from head and back. The complainant then took the injured with the help of above witnesses to the Taluka hospital Khipro. Leaving Shafi Muhammad at the hospital, he went to the police station and lodged his report.

On the other hand one Abdul Latif s/o Haji Shakoor Rangar lodged a report at about 4.20 p.m. at the same police station inter alla alleging therein that he is a Zamindar and owns land in Deh Wadhal which is adjacent to Deh Lunkhan. In front of his land there is one acre of Government land which is in his possession since last 35 years and he cultivates vegetable in the same. That on the day of incident, he was in his house when children informed him that Achar and Shaft Muhammad have set up Otaq with straws in his land and they were putting hedge around it and that they were cutting babul trees standing in the.land. On receipt of the above information, the complainant, Sabir, Jabbar, Munawar and Mumtaz reached there at 1.00 p. m. and sate that Achar and Shafi Muhammad, Ismail Hingoro, Daim Gaju, Samano Hingoro armed with hatchets, Yousuf Hingoro, Fateh Hingoro Ashraf Gaju armed with this were present there Munawar nephew of complainant restrained them-from working in the land by sing that dispute regarding the land was pending decision in brother. On this Fateh, Ashraf, Yousuf and others abused them and asked Ismail and hers not to spare the Rangars. Within the sight of the complainant and others, Ismail gave hatchet blow with its sharp side on the head of Munawar, while Achar, Shafi Muhammad, Daim and Samano Hingoro also gave hatchet blows with sharp side to Munawar. The complainant and others then raised cries, which attracted the people of surroundings and came running there, on seeing them accused ran away with their weapons. The complainant and others saw Munawar who was bleeding from head, arms, and legs. They took him to Taluka Hospital, Khipro, for treatment, and leaving Munawar there, the complainant went and lodged his report.

The applicant Abdul Aziz moved an application for bail before arrest, before the learned Sessions Judge, Sanghar, but the same was rejected vide order, dated 28-2-1987. The applicants Nos.2 to 7 were arrested by that time, and, therefore, they moved an application for bail after arrest. In the meanwhile bail application of applicant Abdul Aziz which was moved after his arrest, also came up for hearing and, therefore, both application were heard together and dismissed by same order, dated 25-2-1987.

I have heard the learned counsel for the parties and have also gone through police papers, slips and Medical Certificate Annexures 'D' and 'E' produced alongwith the bail application.

The contention of Mr. Haji Muhammad Ismail Memon is that there are counter-cases between the parties and it is yet to be seen as to who was the aggressor. That the prosecution has failed to explain injuries on the person of Munawar Ali applicant No.7. That no overt has been assigned to applicants Nos.2, 3, 4 and 7, except in effective firing. While allegations against the applicant No.5 is that he gave lathi blows to deceased Shafi Muhammad. That applicant No.6 Sabir and co-accused Ghaffar are alleged to have given lathi blows to P.W. Fateh Muhammad but they did not cause any injury to the deceased. It was further contended that applicant Abdul Aziz was admitted as Indoor patient in Civil Hospital Karachi from 28th January, 1987 to 5th February, 1987, and he has been falsely implicated. It was -further contended that in view of the injuries sustained by the t6jured it was impossible for him to make dying declaration: That t6re was contradiction in the medical certificate issued by Medical Officer, Khipro, and the Medical Board and, therefore, it was a case of further enquiry.

Mr. S.Sarfraz Ahmed learned A.A.-G. appearing for the State have very frankly conceded to the grant of bail to applicants Nos.2, 3, 4, 6 and 7 but has vehemently opposed the grant of bail to the applicants Nos.l and 5. He has contended that applicant No.l is a person Who had fired at the deceased Shaft Muhammad who died because of fire-arm injuries caused by applicant Abdul Aziz. The medical certificate regarding ali bi produced by the applicant Abdul Aziz is false and has been manipulated. He has been named in the F.I. R. as well as in 161, Cr.P. C. statement of 3 eye-witnesses namely, Daim, Fateh and Samano. He is implicated by deceased Shafi Muhammad in his dying declaration which was made before the Mukhtiarkar and F.C.M. Khipro. This fact of making dying declaration is mentioned even in the post-mortem report. As regards applicant Mumtaz, his contention, is that it was alleged by the complainant and eye-witnesses that he gave lathi blows to the deceased and post-mortem does show that there were two lathi injuries on the person of deceased out of which one was on his head. Even the deceased has mentioned this fact in his dying declaration. That the Medical Board has also opined that the deceased could speak after receipt of injuries, and, therefore, it was of no help to the applicant.

I have considered the contentions of the learned counsel and have also gone through the police papers. Admittedly no overt act has been assigned to the applicants Nos. 2, 3, 4 and 7 except ineffective firing, while applicant No.6 is alleged to have given lathi blows to P. W. Fateh Muhammad. No medical certificate is available in the police A papers to show as to what type of injuries were sustained by P.W. Fateh Muhammad, and since there are counter-cases between the parties, I direct that the applicant Abdul Latif, Abdul Jabbar, Sadoo alias Dilshad, Sabir Hussain and Munawar Ali be released on bail on furnishing surety in the sum of Rs.50,000/- each and P.R. bond in the like amount to the satisfaction of Nazir of this Court.

As far as applicant Mumtaz is concerned, he is alleged to have caused lathi blows to the deceased and according to the post mortem report injuries No.3 and 4 on the person of deceased were caused with blunt weapon. Injury No.3 is lacerated wound 5 c.m. x c. m. x bone deep on right fronto parietal region, while injury No.4 is contusion on right forearm. Since the post-mortem report does not show any fracture under injury No.3 or 4, and the report clearly shows that the death was the result of haemorrhagdand shock and that injury No.l was sufficient to cause death individual SJ. In these circumstances and the fact that is yet to be seen whether this applicant had a common object to kill deceased, I direct that the applicant Mumtaz shall also be released on bail on furnishing surety in the sum of Rs.50,000/- and P. R. bond in the like amount to the satisfaction of Nazir of this Court.

So far the case of applicant Abdul Aziz is concerned, it stands on different footing. He has been attributed the main part of causing fatal injury to the deceased with fire-arm. His name appears in the F.I.R. and he has been directly implicated by the eye-witnesses. Even the dying declaration shows that he was responsible for firing at the deceased. The discharge slip and medical certificate show that there are over writings in the slip anal medical certificate produced as Annexures 'D' and 'E' alongwith the bail application which create C doubt with regard to the plea of alibi taken by the applicant Abdul Aziz. As regards the contention off. Muhammad Ismail Memon that there was contradiction in the Medical certificate issued by the Medical Officer and the Medical Board, it will suffice to say that medical Board has also agreed with the opinion of the medical officer that the deceased could speak after receipt of injuries and, therefore, there was no contradiction which could show that the dying declaration could not be made by the deceased. That the Mashirnama of the Vardat shows that the incident took place in Government land, and the applicant has not produced any document to show that he was in possession of the said Government land since last 35 years as alleged by him. The accused party has also failed to explain injuries on the person of deceased, which shows that both parties have suppressed their role in the incident. The application of applicant Abdul Aziz is therefore, rejected.

However, after the complainant and eye-witnesses are examined the applicant can move a fresh bail application before the trial Court if so advised.

M.Y.H./A-105/K Petition partly accepted.

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