1. ' The applicant Ali Ahmed son of Gul Hassan by cast Sasyo, who has been booked in Crime No,10 of 2009 of Police Station Chuhar Jamali, District Thatta, for the offence under sections 147/148/149/302/114/504/34, P.P.C., finding his imminent danger of arrest, approached the learned Sessions Judge, Thatta for grant of bail before arrest. As per order dated 16-4-2009, the applicant was granted interim bail and on 23-4-2009, the above said order was recalled. The applicant now has approached this Court for the same relief.
2. ' On 1-6-2009, the applicant was granted interim bail by this Court and the matter was adjourned for confirmation or otherwise.
3. ' Brief facts are that on 19-2-2009, at 2230 hours, complainant Fayaz Ahmed Memon ledged the F.I.R. At Police Station Chuhar Jamali, inter-alia stating therein that on 16-2-2009, he, his brother Muhammad Khan, son Riaz Ahmed aged about 18 years and Abdul Karim at evening time, were passing from Syed Bazar Chuhar Jamali Town and going towards their house; that when at about 1830 hours, they reached near the shop of Ilya Kachi, they found Ali Akbar Brohi armed with hatchet, Master Ashraf Chandio, Ayoob Sasio, Ghulam Mustafa Brohi, Ghulam Mustafa Sasio and Ali Ahmed Sasio (the applicant) all armed with Lathies, standing there; that accused Ayoob Sasio instigated other accused not to spare Riaz on this, accused Ghulam Mustafa Sasio and Master Ashraf caught hold complainant's son Riaz while accused Ali Akbar Brohi caused straight hatchet blow on the head of Riaz and remaining accused also caused Lathi blows on the person of Riaz. Thereafter, accused Ali Akbar. Brohi asked co-accused that their job is completed and then accused while abusing went away. The complainant party took inured Riaz in serious condition at RHC, Chuhar Jamali wherefrom after providing first aid, injured Riaz was referred to Civil Hospital Makli from there, he was referred to Jinnah Hospital Karachi and on 17-2-2009, complainant sent his brother Abdul Shakoor to Police Station Chuhar Jamali for obtaining letter for treatment and on 19-2-2009, the injured Riaz succumbed to injuries. The complainant thereafter brought dead body of deceased Riaz at RHC Chuhar Jamali, leaving the dead body there he appeared at Police Station and lodged the F.I.R.
4. ' The motive behind the incident as alleged in the F.I.R. Is that on 16-2-2009, deceased Riaz had informed the complainant that some alteration has taken place between him and Ali Akbar Brohi.
5. ' The police took up the investigation, arrested the accused nominated in F.I.R. Except co-accused Ashraf whose name has been placed in challan as absconder, recovery of weapons made from the accused. Examined the witnesses under section 161, ,Cr.P.C. The accused/applicant has shown his innocence and in support of his innocence, he examined D.Ws. Darya Khan and Muhammad Hassan, who supported the innocence of the applicant.' On the basis of the said material, the Investigating Officer released the applicant/accused under section 497, Cr.P.C. The Investigating Officer after completing usual investigation submitted the challan in the Court of learned 1st Civil Judge and Judicial Magistrate Sajawal, placing the name of applicant/accused in column No,2 and sent up the same to the Court of learned Session Judge Thatta for trial.
6. ' Mr. S.M. Iqbal, the learned counsel for the applicant argued that the applicant is innocent and the complainant with ulterior motive and mala fide intention has involved him in the present case, the applicant is a minor having 13 years of age, the applicant was arrested during the course of investigation and was released under section 497, Cr.P.C. Since, the name of the applicant shown in column No,2. The applicant finding his imminent danger of arrest applied for bail but 'the same was dismissed by-the learned Session Judge Thatta, per counsel, no such application has been filed by the complainant for joining the applicant/accused before the learned trial. Per learned counsel the case of the applicant, therefore, requires further inquiry as envisaged under Sub-Clause (2) of section 497, Cr.P.C., in support of his contentions, the learned counsel relied upon the case of Arbab Ali v. Khamiso and others reported in 1985 SCM R 195, Murad v. The State reported in PLD 1983 SC 82.
7. ' In rebuttal, Mr. Jehangir Rahujo, the learned counsel for the complainant vehemently opposed the grant of bail and argued that the applicant is involved in a heinous case and caused injuries on the person of deceased, he has not shown any mala fide on the part of the complainant. In support of his contention, he relied upon the case of Mst. Qudrat Bibi v. Muhammad Iqbal and another reported in 2003 SCM R 68.
8. ' Mr. Ali Haider Saleem, the learned Assistant Prosecutor General Sindh, vehemently opposed the grant of bail and adopted the arguments in rebuttal advanced by the learned counsel for the complainant.
9. ' I have heard the learned counsel for the parties and have gone through the material available on record and so also the law relied upon by the learned counsel for the parties.
10. ' From perusal of the F.I.R., it appears that the applicant along with co-accused Master Ashraf, Ayoob, Ghulam Mustafa and Ghulam Mustafa alias Baboo duly armed with Lathies caused injuries on the back and arm of the deceased. The perusal of post-mortem shows that the deceased sustained abrasion injuries on his arm, 'shoulder and backside, wherein the specific injury with hatched on the head of the deceased Riaz is attributed to co-accused Ghulam Akbar. The Medical Officer in his opinion has opined that:--- "I conducted the post-mortem examination over the dead body of Riaz Ahmed son of Fayyaz Ahmed. From external and internal examination, I am of opinion that he has died due to severe head injury, which was caused by any Hard Instrument with cutting edge (like axe). All the injuries are ante-mortem in nature."
11. It is an admitted fact that the applicant was shown in the F.I.R. Having Lathi. It is also an admitted fact that the applicant/accused along with co-accused namely Master Ashraf, Ayoob, Ghulam Mustafa and Ghulam Mustafa alias Baboo having Lathies in their hands, caused Lathi A injuries on the person of deceased. The Medical Officer in his certificate has shown the injuries caused by the applicant along with co-accused on non-vital part of the body i.e. Arm, shoulder and backside. It is also an admitted fact that during course of investigation, the applicant was found innocent and the Investigating Officer released him under section 497, Cr.P.C. And at the time of submission of challan, the name of applicant has been shown in Column No,2 of the challan. The motive is specifically attributed to main accused Ghulam Akbar who caused hatchet injury on the head of deceased. The common intention and A sharing of the applicant along with the co-accused is yet to be seen after recording the evidence. The learned counsel appearing on behalf of the complainant, during the course of arguments, admitted that they had not filed application under Section 193, Cr.P.C. For joining-the applicant as accused in the case.
12. ' The Honourable apex Court while deciding the case of Arbab Ali (supra) has observed that:- "These are certain other features also in this case which have been attended in the High Court before giving a verdict that it is a case of "Further-inquiry". It needs to be clarified that bail can followed (in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497) under subsection (2) of section 497, Cr.P:C. When there are sufficient grounds for further inquiry into the guilt of the accused but only on the condition when the police officer or the Court at any stage of investigation, inquiry as the case may be, comes to a definite conclusion that there is no reasonable grounds for believing that the accused . Has committed non-bailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry. This aspect of the relevant law has not been brought to the notice of the learned Judge of the High Court."
13. ' In my humble view, the case-law relied upon by the learned counsel for the complainant is not applicable in the case in hand for the reason that in that case i.e, Mst. Qudrat Bibi (supra), the injury with hatchet was attributed against the accused and the same was corroborated by the medical evidence, therefore, the pre-arrest bail was recalled.
14. In view of the, above foregoing reasons, I am of the considered view that the applicant has made out the case of further inquiry as envisaged under sub-clause (2) of section 497, Cr.P.C. Resultantly, I confirmed the interim to the applicant on 1-6-2009, on the same term and conditions.
15. Pre-arrest .